This is the latest liberal line - they must have had bloggers researching every word from Thomas, Roberts, and Alito and they came up with this:
“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination....And I do take that into account”. Alito made similar statements as to chidren, disability, immigration, gender, etc. followed by “I can’t help but _think_ of my own family, etc. etc.”
So today on Meet the Depressed, David Gregory set up a ‘gotcha’ question on Sen. Sessions - let him go on how Sotomayor’s statement wasn’t necesarily what we want in a judge, etc. and then Gregory ask him “Is it appropriate to “take into account” one’s personal story, etc.” And of course Sessions continued holding on ‘blind justice’. Then Gregory popped the clip of Alito’s statement on him.
As I emailed Rush:
I’m sure we’ll be seeing this clip all week and I’ll admit that for most people viewing it, it will look like Gregory makes Sessions into a hypocrite or that he makes him eat Sam Alito’s words, but few will notice that there is a differentiation between “consideration” and “decision”.
One may go through multiple considerations on a problem before coming to a decision or conclusion.
I’ve always thought about this in an analogy of the ‘brainstorming’ that went on within the Kennedy Administration with regards to Castro. Many things were _considered_ and the purpose of brainstorming is to come up with any idea, even the craziest, where it might cause another to take a slightly different angle. So bringing up the idea of assassination might arise but while it might be rejected out of hand, it is a ‘consideration’ that was discussed. The conclusion might be very different from many of the considerations that arose and **one cannot equate a consideration with a conclusion**. And this is the case in comparing Sotomayor’s statement with Justice Alito’s during his confirmation.
His statement was that he would ‘take into account’ (ie. take into consideration) the ethnic background of his family members - the actual transcript gives a bunch of examples
http://www.nytimes.com/2006/01/11/politics/politicsspecial1/day3-text.html?pagewanted=18
- disability, gender, children, immigration but of course David targeted ethnicity. And in asking Session’s he used Alito’s exact phrase “take into account” before popping the clip on him. My guess is that Leahy knew this was coming ahead of time (by virtue of his prior statement - that mentions the points David shows in the clip - almost a tag team here) and the Sessions was blindsided.
Going back to the ‘consideration’/’conclusion’ dichotomy. If you read the whole statement that David presented from Sotomayor, all of her statements pointed to ‘decisions’, ‘conclusions’ and ‘judgments’. In fact, when she quoted Justice O’Connor as saying that old men and old women would come to the same _conclusion_’ Sotomayor said she disagreed with that statement and while I haven’t dug up the context of the O’Conner statement, my guess is that there is some discussion about ‘considerations’ or ‘what might be taken into account’ before she gave the statement of ‘equal conclusion’ regarding old men and women. But regardless, Sotomayor’s statements are aimed at conclusions rather than considerations. And there’s a difference there and it is a signicant one. One may even say, as Sessions implied, that _that_ is where empathy can come into play - in considering a case, but _NOT_ in deciding one. That is where the rule of law takes over any bias.
Frankly, the statement that she made may be perfectly acceptable for someone running for the House where they want to ‘connect’ with their constituency but for blind justice it is so inappropriate that she should be dismissed out of hand.
Follow up.... Looked into O’Connor’s full statement and it was as I expected. Found this:
O’Connor:
“As a state court judge once said, at the end of the day, a wise old woman and a wise old man reach the same _decision_. _But_ (she’s differentiating here) there is always a need for diversity of backgrounds **to permit a fuller _discussion_ of the issues** presented to the court. Women, because of their life experiences, **bring that something extra to the _discussion_**.”(my emphasis)
And this is where O’Connor gets it right and Sotomayor gets it wrong. O’Connor sees the ‘judgment’, conclusion, decision from a purely ‘blind justice’ position as it should be and yet the _discussion_ can be ‘flavored’ if you will, from the individual justice’s life experiences as Alito also says. But Sotomayor is talking judgments, conclusions and decisions and this is where _she_ thinks the ‘life experience’ _Also_ plays a part, iow, she is not suited for the Supreme Court. This is the exact embodiment of prejudice and bias whether it is racial, gender or otherwise - ie. when the judgment is “flavored” as well.