Don’t misread me here – I think Obama’s first SCOTUS nomination is horrid. But since it was no secret that the President was going to nominate an ultra-liberal jurist whose thread of fidelity to the Constitution and the law will be severed at the first inconvenience or policy disagreement, this particular judge’s flaws provides us with an excellent opportunity to stem the tide a little.
The bottom line is that I actually think she’s such a caricature of a liberal judge that she is the perfect vehicle for exposing the intellectual bankruptcy (and indeed, as I wrote about in my last post, the danger) of her and the President’s legal philosophies. And I don’t know that Obama could possibly have found someone less likely to be able to persuade colleagues to join her positions.
Of course, it requires Senate Republicans to play their cards right, which I don’t know if we can count on…
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My primary problem with Judge Sotomayor is that she doesn’t seem to think that Lady Justice ought to be wearing that blindfold. This is perfectly in line with Obama’s stated goal of finding a judge who will think beyond those tired and dusty “legal theories” or “written laws,” of course, and so that would be my problem with any of his picks.
But Sotomayor’s now famous quote that, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” takes that un-blindfolded view of Justice to an unacceptable and offensive level. It assumes that a) white males don’t live rich lives, and that b) she thinks people of one race and/or gender will inherently make better legal decisions than that of another. Both assumptions are deeply offensive, every bit as offensive as the same statement would be were the races in it reversed.
It is a perfect distillation of identity politics in action, the inherent racism of which I despise. As if all white people think the same way. As if all Latinos think the same way. As if all women or men think the same way. How disgustingly elitist and condescending! To make such an assumption is to deny the individuals within these groups their humanity.
So much for empathy.
But fortunately, she said it. She didn’t hide her views on it, where a more shrewd or careful judge who should have known they’d be on a SCOTUS shortlist would. And so her views on race are available for all to see and judge. And so are her decisions and opinions which show those views in action, like the pending Ricci discrimination case.
She showed this same transparency when she spoke of the circuit courts making policy, and even did us the courtesy of saying it on tape to be replayed over and over again.
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This identity politics view, of course, is likely not limited to race. One wonders if she will decide for a sympathetic plaintiff who nonetheless has no legal basis for a claim (or who can’t adequately prove it in court), just because she perceives them as “sympathetic.” Probably – unless the question involved private property, in which case her history suggests a disdain for that fundamental right that would make even the dissenters in Kelo blush.
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But it is her reputation for a relative lack of intellectual heft and a bullying manner from the bench that gives me the most hope. No one questions that Souter’s replacement will be a lefty vote. But the question is, will it be a lefty vote with the power to convince other Justices to vote the same way? So far, nothing suggests she’d have that kind of power.
The liberal New Republic expressed serious reservations about her ability to be an effective purveyor of liberal legal thought a month before she was nominated – reservations which are all good arguments for conservatives to let her go through.
(The author of that piece, Jeffrey Rosen, posted an update today complaining that, “Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her.” He’s right, but he doesn’t know how lucky he is that this is the tack most of them are taking.)
The current Supreme Court has been similarly unimpressed with her prowess as a legal thinker, overturning 3 of the 5 of her opinions that had come before them (with another expected to come in the Ricci case). And one of the cases that was upheld was upheld under a different legal theory, with time taken by the Chief Justice to starkly criticize her reasoning.
None of these things point to a judge who will sway the other Big Brains and Bigger Personalities who currently sit on the highest bench in the land.
And ultimately, if indeed her legal reasoning in her opinions and her demeanor with the attorneys arguing in front of her are as off-putting as I think they might, her ideas will not gain the kind of traction or influence in the greater legal world and in the lower courts that a smarter, more eloquent justice could produce.
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So what do Republicans need to do during her confirmation?
First, I’d issue a statement of intent. “We do not intend to filibuster Judge Sotomayor. Her past public statements and legal opinions have shown such absurd race-baiting, judicial activism, and radicalism, and for that reason most of us will probably vote against her. But we are equally convinced that with full hearings and an up-and-down vote, Americans will see the problems with President Obama’s entire legal philosophy. We are happy to shed light rather than heat on this nominee, and let her use her own words to help us do it.”
Second, they must actively work against the race baiting which has already begun, and turn it back on those who would use it. I would issue another statement to the following effect: “To all Hispanic Americans, we say this – the Democrats must think you’re pretty stupid. They think you’re so simple minded that you can’t tell the difference between us attacking a person’s judicial philosophy (which we will) and their ethnicity (which we won’t, but which liberal partisans are pre-emptively accusing us of). They assume that all Hispanics will – and should – all think alike and vote alike, as if you’re unable to think for yourselves. They’re taking for granted that you all just move in a herd, and sadly, it sounds to us like Judge Sotomayor feels the same way.
“Well, we don’t feel that way. Since Conservatism is all about respecting individuals regardless of the color of their skin, understand that we give each of you a hell of a lot more credit than that. In fact, we find this idea of identity politics offensive and contrary to the notion of ‘Equal Justice Under the Law’, and we aren’t going to let that stand. We know Hispanic Americans (just like most Americans) are smart enough to see just how tired and worn out this ‘any criticism = racism’ meme really is. We certainly aren’t going to take it from the same people who unfairly smeared Clarence Thomas and Miguel Estrada because they didn’t think the color of their skin matched their “incorrect” opinions on the law, and neither should you.”
Then during the confirmation hearings, drill into her. Get her to stand by her statements on policy making and identity politics, or if she deviates from them ask her, “were you telling the truth then, or are you telling the truth now? It can’t be both.” Make her explain her philosophy of judicial decisions disconnected from the law. force her to justify her past decisions. Be polite in the questioning, and avoid the Ted Kennedy-esque hyperbole about the end of the world, but be unrelenting and firm in the dissection of her philosophies. Do it over and over and over again.
Finally, don’t filibuster, but vote against her. It’s not like Obama is going to appoint a moderate or a stealth conservative (in the way Souter was a stealth liberal) as a replacement even in the unlikely event the filibuster is successful. And then any future charges of “obstructionism” will be far less weighty when employed against
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If we have to have a liberal Justice, and that’s inevitable, let’s at least have one with the smallest amout of influence on her colleagues as possible, and will make the best possible case through her votes and writen opinions for voting for Senate Rpublicans in 2010, and for not letting Obama make any more appointments after 2012. Judge Sotomayor fits that role perfectly. Let’s not squander the opportunity.
