Sunday, May 31, 2009

La Raza Fights Racism

Via Group News Blog we have this. I'm doing the same as Maggi Jochild, copying the message in toto.

The nomination of Judge Sonia Sotomayor to the U.S. Supreme Court was an historic and proud moment for Latinos and the country as a whole. But her ethnicity has proven too much of a temptation for the voices of hate and extremism, who instead of looking at her judicial record have launched a vocal rampage that has reached new heights of absurdity.

Take action to put a stop to it.

Rush Limbaugh, former House Speaker Newt Gingrich, and others are claiming that Sotomayor is a "reverse racist" because she believes that more judges with diverse backgrounds and experiences would be a good thing for the judicial system. Mark Krikorian of the Center for Immigration Studies (the "think tank" of Tanton's web of anti-immigrant extremist groups) and his pals at the National Review online are just beside themselves that Judge Sotomayor had the temerity to pronounce her own name correctly. They basically said that if she was a real American, she would butcher it. In an article that appeared in The Hill newspaper, Republican insiders are quoted as being "concerned" that Sotomayor's avowed love of arroz con gandules and other Puerto Rican delicacies will cloud her judicial decision-making.

This one, however, takes the cake:

Former Congressman, failed presidential candidate, and anti-immigrant extremist Tom Tancredo, unable to provide a shred of evidence for his assertion that Judge Sotomayor is a "racist," went off the deep end on CNN, saying Sotomayor belongs to "the Latino KKK without the hoods and nooses."

That's what Tancredo called NCLR-a 40-year-old, national Latino civil rights organization that works with community organizations all over the country to help Latino families achieve the American Dream. NCLR has been recognized by members of Congress and the media, has hosted presidents of both political parties, and works hand in hand with other national civil rights organizations in a bipartisan way to
improve the lives of all Americans.

Act now to stop this nonsense.

Raising questions and concerns about Judge Sotomayor's 17-year record on the bench is legitimate. Resorting to outdated stereotypes, defamation of character, and outright falsehoods is not.

Please join us and send a message to Chairman Michael Steele of the RNC, House Minority Leader John Boehner, and Senate Minority Leader Mitch McConnell asking them to denounce these statements and restore the nomination process for Judge Sotomayor to a more appropriate and civil discourse.

Fact is also on the issue.

There's a difference between "percent of all decisions she has written" and "percent of all decisions reviewed by the Supreme Court." See how that works?

May 28, 2009
Updated: May 29, 2009

Q: What percentage of Sonia Sotomayor's opinions have been overturned by the U.S. Supreme Court?
Have Judge Sotomayor's decisions really been overturned 80 percent of the time as Rush Limbaugh stated on May 26?

A: Three of her appellate opinions have been overturned, which is 1.3 percent of all that she has written and 60 percent of those reviewed by the Supreme Court.

Of the majority opinions that Judge Sonia Sotomayor has authored since becoming an appellate judge in 1998, three of them have been overturned by the Supreme Court.

Our search for appellate opinions by Sotomayor on the LexisNexis database returned 232 cases. That's a reversal rate of 1.3 percent.

But only five of her decisions have been reviewed by the justices. Using five as a denominator, the rate comes out to 60 percent.

We have contacted Rush Limbaugh to ask how he came up with the figure he used recently when he said, "She has been overturned 80 percent by the Supreme Court." We'll update this item if we receive a response. (See our May 29 update at the end for how Limbaugh may have calculated his 80 percent figure, and why we judge it to be mistaken.) In the week before President Barack Obama announced that he would nominate Sotomayor, the conservative Judicial Confirmation Network ran an Internet ad saying she had a "100 percent reversal rate," which is false. (We asked that group for back-up material, which a spokesman agreed to give us but which we never received; since Obama's announcement, the group has taken the ad down.)

In any case, 60 percent of the cases the Supreme Court has reviewed is not a particularly high number. In any given term, the Supreme Court normally reverses a higher percentage of the cases it hears. During its 2006-2007 term, for instance, the Court reversed or vacated (which, for our purposes here, mean the same thing) 68 percent of the cases before it. The rate was 73.6 percent the previous term.

In two of the three Sotomayor reversals, at least some of the more liberal justices dissented, agreeing with her holding.

==> One was a 5-4 decision in 2001 in Correctional Services Corporation v. Malesko, which involved an inmate who sought to sue a private contractor operating a halfway house on behalf of the Bureau of Prisons over injuries he sustained. Sotomayor said he could, but a majority of the justices disagreed.

==> In another case, Sotomayor wrote that under the Clean Water Act, the Environmental Protection Agency could not use a cost-benefit analysis to determine the best technology available for drawing cooling water into power plants with minimal impact on aquatic life. By a vote of 6-3 this year, the Supreme Court ruled otherwise in Entergy v. Riverkeeper.

==>The third reversal, in 2005, was a unanimous 8-0 decision in the case Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit. Sotomayor had written that a class action securities suit brought in state court by a broker/stockholder was not preempted by the 1998 Securities Litigation Uniform Standards Act. But the high court's opinion said it "would be odd, to say the least" if the law contained the exception that Sotomayor said it did.

The Supreme Court is expected to rule by the end of June on the much-discussed Ricci v. DeStefano case in which Sotomayor took part. It's not publicly known whether she wrote the unsigned, one-paragraph order in the reverse discrimination case involving firefighters in New Haven, Conn., to which all three of the judges hearing the case agreed. (That order later became an official opinion with the same wording at the behest of other 2nd Circuit judges.) The decision, upholding the ruling of the lower-court judge who first heard the case, said the city was justified in not certifying the results of an exam required for firefighters to be promoted after no African Americans scored highly enough to be considered.

(Note: We haven't analyzed cases in which Sotomayor merely voted with the majority, only those in which she is on record as having written the majority opinion. She also may have written some unsigned opinions or orders, such as the one in the Ricci case above, but we have no way of knowing if that's true or if so, how many she may have written.)

— Viveca Novak

Update, May 29: We wrote above that we didn’t know how Rush Limbaugh had calculated that Sotomayor “has been overturned 80 percent by the Supreme Court.” Since we posted, however, an alert reader has pointed us to something else Limbaugh said in the same May 26 show:

Rush: The Supreme Court has reversed Judge Sotomayor in four instances where it granted certiorari to review an opinion she authored. "In three of these reversals, the Court held that Judge Sotomayor erred in her statutory interpretation," meaning she goofed up on the law. She was overturned four times when she wrote the opinion, the lead opinion, and in three of the four cases the Supreme Court held that she erred in her statutory interpretation. The cases are Knight v. C.I.R., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, New York Times, Inc. v. Tasini, and Correctional Servs. Corp. v. Malesko. The cases are 2008, 2006, 2001, and 2001. So there you have it.

Four out of five – as we noted above, Sotomayor has had five appellate decisions reviewed by the Supreme Court – is 80 percent. But Limbaugh is wrong on his cases, and thus wrong in his calculation. First, in Knight v. Commissioner of Internal Revenue, Sotomayor’s decision wasn’t “overturned” at all. In fact, it was upheld unanimously, though the justices faulted her reasoning.

Second, New York Times v. Tasini was one of Sotomayor’s 442 rulings as a district court judge. Limbaugh is correct that the Supreme Court upheld the appellate court ruling that had reversed her decision.

But we have not dived into her lower court jurisprudence, as opposed to her appellate majority opinions, nor have we seen a reliable analysis of it done by anyone else. We don’t know how many of her decisions in district court were appealed all the way to the Supreme Court, or what their disposition was. And third, Limbaugh didn’t include Entergy v. Riverkeeper, which was a clear reversal by the justices. Eliminating the cases Limbaugh shouldn’t have included and adding back in the one he should have brings us back to 60 percent.

Posts such as this should be so unnecessary. It is a telling commentary on our time and the durability of racist thinking that we still talk about this stuff after all these decades.

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