They are using this 35 second clip of Sotomayor making comment on policy and the court of appeals:
To which, our example - Hot Air's court jester Ed Morrissey - reacts as one might think he would:
Not only do we have Sotomayor essentially admitting that she sees lawmaking as the purview of courts, but a speech given in 2001 makes Sotomayor sound like the kind of identity-politics hack that most people saw in Lani Guinier when her appointment in the Clinton administration went down to defeat.
If she’s that erudite in front of the Senate Judiciary Committee when answering this question, the Republicans won’t have to push hard to bounce Sotomayor out of the Supreme Court. She knew she’d overreached and couldn’t even explain herself in front of a friendly audience, who realized quite well that her backpedaling was entirely self-serving and incoherent.
The only problem with Morrissey's statement that this is somehow "controversial" is that it, in point of fact, isn't.
Stoney Brook University law professor Jefferey Segal sees Sotomayor's statement as completely within the bounds of the truth.
....the law is not always clear. And in clarifying those laws, the courts make policy.
Segal's statements are echoed by Hofstra University law professor Eric Freedman.
It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals... It is thoroughly uncontroversial to anyone other than a determined demagogue.
One element of judging, obviously, is issuing precedent...But if the thing were squarely disposed of by existing precedent they probably wouldn't go to the court of appeals for it. Their lawyers would say, forget it... So this is where you get clarification for cases without precedent.
I would be surprised if you got a different opinion from a fair-minded observer in the legal world.
The conservative Right, as well as the whole of the GOP, could seriously shoot themselves in the foot if they attempt to block Sotomayor's appointment simply on the grounds that they can. The reason being, is that they greatly need the vote of the Hispanic community. But, Sotomayor shouldn't be accepted simply because of her ethic heritage. Considering we are speaking of a very reactionary group of politicos, I'm not going to be holding my breath waiting for them to ask honest questions during her confirmation.
Michelle Malkin takes a slightly different road, as she casts Sotormayor as an angry Hispanic prone to outbursts.
Substantial questions also persist regarding Judge Sotomayor’s temperament and disposition to be a Supreme Court justice. Lawyers who have appeared before her have described her as a “bully” who “does not have a very good temperament,” and who “abuses lawyers” with “inappropriate outbursts.
Malkin, as well as her equally reactionary compatriots, are citing a case in which a panel that Sotomayor sat on affirmed a dismisal of claims by white firefighters. This, coupled with the "angry latino" meme that Malkin is using, is used to further construct the point ( albeit flacid ) that Sotomayor will side against "whites".
At issue, claims that Sotomayor is dismissive and utterly inexperienced, are a bit to flimsy to actually take hold.
Tom Goldstein, of SCOTUSBLOG writes of the conservative-Right's claims, in particular the Ricci v. DeStefano case they are addressing:
The public neither understands nor cares about the publication practices of the courts of appeals. It also is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.
The "angry hispanic prone to outbrursts that doesn't like white people" meme falls completely apart even with the most minimal of review efforts.
Fox"News" and conservative pundits have been on the offensive against Sotomayor even before she was chosen.
Matt Yglesias at Think Progress points out that, as is standard with conservatives, many on the Right seem to have a problem with a woman in power.
I recall a lot of issues being raised during the Samuel Alito confirmation fight, but at that time I don’t remember anyone raising questions about the intelligence of a Princeton/Yale Law graduate who’d done time on an Appeals Court.
And if you're looking for some "bottom-of-the-barrel" reaction to Sotomayor's pick, look no further than the place where people believe in the United States of America and its ideals.
I'm not going to fall over myself praising Obama for this pick, but her record is perfectly in line with other "liberal" judges that have served on the SCOTUS. There is little, if any, information that shows that she is going to be this alleged "radical" that the conservative Right is claiming she is. However, unless someone were to the Right or equal to Ronald Reagan, there is no satisfying anyone within the conservative movement.
When we are attempting to discuss something seriously, it's almost too much to ask them for even a shred of intellectual honesty.