Sotomayor, Thomas, Twain, and the NY Times

-By John Armor

One of Mark Twain’s well-known quotes is this: “There are lies, damned lies, and statistics.” The humor works because it is based on truth. We all know there are those who play games with statistics to support a false conclusion. One of Twain’s own examples was that “the number of Methodists and murderers is rising at the same rate in the Nebraska Territory.” That “proved,” of course, that Methodists are murderers.

It is also possible, however, to present a lie by constructing a discussion with nothing but hard, provable facts. The New York Times demonstrated that fact today (Sunday) with a frontpage, above the fold article comparing Sonia Sotomayor, nominee to be a Justice on the Supreme Court, with Clarence Thomas, who has been a Justice since 1991. The title of that article is, “For Sotomayor and Thomas, Paths Fork at Race and Identity.”

I have read extensively on the backgrounds of Justice Thomas and Judge Sotomayor. I am satisfied that almost all of the facts about the childhoods, educations, writings and careers of these two judges in this article are accurate. It is true, as the article states, that both suffered great racial prejudice at all stages in their lives. It is true that they reacted somewhat differently to that prejudice.

Packed with all those facts, the article nonetheless presents two major lies to the reader. One is contained within its text. It concludes that the differences between Justice Thomas and Judge Sotomayor in their approach to the law is driven by their different responses to racial discrimination in their lives.

There is a deeper, more important fact that this long article never mentions. The closest it comes to discussing jurisprudence of these two is in a single sentence, nearly at the end. It says, “From Yale, Mr. Thomas and Ms. Sotomayor took what seemed like entirely different paths: he as a Reagan official who helped dismantle affirmative action programs; she as a prosecutor and litigator.” The bias of the writers and editors appears here, since Sotomayor was at that time litigating in favor of La Raza Unida, whose then-stated purpose was to remove the southwestern states of the US and return them to Mexico. Most people would see that as the ultimate affirmative action program.

What the article entirely skips is the difference in judicial philosophy between these two judges. Anyone who reads their writings knows how both of them approach the Constitution, and the task of judging. Those are the most important questions about anyone nominated for the Supreme Court, at any time, regardless of who they are and what their backgrounds are. It cannot be by accident that the thorough writers and editors of the Times missed this central point.

Justice Thomas believes that the Constitution and the laws should be obeyed by the Court, until either is amended by the legitimate means that appear in the Constitution for such changes. Judge Sotomayor believes that the Constitution and the laws need not be obeyed by the Court when the interests of justice, including justice for certain groups and not others, require that result.

The best way to examine the judicial philosophy of a judge is to read the opinions that he or she wrote, especially where there was a dissent by other judges. The reason is that the Court of Appeals (Sotomayor) and the Supreme Court (Thomas) follow the same process. In cases where there is a dissent, both the majority and dissenting opinions are circulated among all participants. Multiple drafts are written.

Often the judges, or Justices, “talk” to one another in the opinions as finally published. The majority will say why the dissent is wrong on a particular point, and why. The dissent will do the same in reverse. In close and hard-fought issues of constitutional law, that process reveals which judges see the constitution as binding, regardless of their personal views, and which do not. And that is the most important question about any federal judge.

Had the Times covered that part of the story, its readers might have understood that this is not just about race. Some of them might have concluded that Judge Sotomayor represents a danger to the Constitution, and should not be confirmed. Since that would be an unacceptable result, the facts on jurisprudence were left out of this article. Mark Twain would have understood.
John Armor is a graduate of Yale, and Maryland Law School, and has 33 years practice at law in the US Supreme Court. Mr. Armor has authored seven books and over 750 articles. Armor happily lives on a mountaintop in the Blue Ridge. He can be reached at:

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