Right Thinking From The Left Coast
The Government is merely a servant -- merely a temporary servant; it cannot be its prerogative to determine what is right and what is wrong, and decide who is a patriot and who isn't. Its function is to obey orders, not originate them. - Mark Twain

Cherry-Picking the Judge

If one factor has made me distance myself from the Gang of Idiots currently calling themselves the GOP, it has been the ridiculous and unncessary smears hurled against their political opponents.  Taking little quotes and exploding them beyond all measure; gathering tiny residues of a rumor in place of large rivers of fact; accusing opponents of the worst sort of motivations—that’s something liberals do, Goddammit.  The strength of conservatism, for a quarter of a century, lay in being confident in our point of view and letting the liberals make jackasses of themselves all on their own.  They excelled at that.

We’re seeing this ugly shrillness—or at least an echo of it—in the Sotomayor nomination.  No less than Karl Rove, who wouldn’t know the rule of law if it put him in a stress position, opines that Sotomayor will judge based on her empathy.  Contrast that with Greenwald, a constitutional lawyer who has actually argued a case before Sotomayor, describing her highly technical and narrow decision in the case he brought.  Then John Yoo, whose torture memos would get a first-year law student kicked out for incompetence, bashes her record and her empathy again.  Contrast that with Orin Kerr’s careful explanation of the role empathy plays in justice.  Then there’s Tom Tancredo, calling her a member of the Latino KKK.

We’re told she’s had three of five decisions overturned by SCOTUS—not told that SCOTUS overturns about 75% of the decisions they get anyway.  A random comment from eight year ago about “wise Latina women” suddenly indicates she’s a secret racist lunatic.  Read the relevant section of the actual speech here and judge for yourself.  To me, it’s just standard liberal blithering about “diversity” laced with enough caveats to render it all meaningless.

Sotomayor is liberal (although maybe not as liberal as some Dems would like).  But her record—her entire record, not two cases plucked from the larger sample—is not that of a radical.  Read the AP’s analysis here; read Walter Olson here.  Read about her disturbing Didden decision here (if you can call an unsigned one sentence dismissal a decision).  Read more about the Ricci case here.

Why do I care about this?  Not because I am afraid of hurting the delicate feeling of liberals, I can assure you.  I care because we only have so much ammunition we can throw at the liberals before the American Middle tunes us out.  Last year, the GOP got played like a violin by Barack Obama.  They screamed about Jeremiah Wright, they shouted about Bill Ayers, they tried to dig up dirt in his wife’s thesis, they called him a celebrity and an elitist.  They won every news cycle.  But when it came time to point out that Obama was filling oceans of spending with teacups of taxes, when it came time to point out that he was pulling health care numbers out of his ass, when it came time to point out his unswerving obedience to the unions ... no one was listening anymore.

Sonia Sotomayor does not cross me as the fire-breating, racist, unqualified, affirmative action picked, empathic, radical running dog crazy person that is drawing such shrillness.  We need to slow down.  Be patient.  Quietly gather our facts.  Discard pointless distractions like a meaningless speech.  Focus on the relevant, like her record.  Let Obama win today’s news cycle.

And then, when the hearings begin, question her as thoroughly and effectively as possible.  If she’s incompetent or crazy, a good hearing will make that very very obvious.  I would particularly like to see her grilled on the commerce clause.  Stick to what’s relevant, not what’s juicy.

Because if we don’t cut it out and focus on the task in hand, then Obama will send up someone really crazy next time.  And the public won’t be listening.

Posted by Hal_10000 on 05/28/09 at 07:07 PM (Discuss this in the forums)

Comments


Posted by West Virginia Rebel on 05/28/09 at 09:43 PM from United States

There’s also the risk of turning off a lot of Hispanic voters who might otherwise agree with them on cultural issues-something Bill O’Reilly actually pointed out on his show, along with the fact that the GOP is turning into The Incredible Shrinking Party. As he put it, they’re doomed if they keep this up-and then there really will be no meaningful opposition left when the crazies really do come into power.

Posted by on 05/28/09 at 09:45 PM from United States

Orin’s post is trying to make sense of the debate and clear up terms; it’s possible Sotomayor thinks empathy is extremely important in cases Orin would classify as “doctrinally irrelevant.”

In general, I mostly agree. As I said in another thread, Sotomayor seems well qualified and on the plus side she has a lot of experience in a wide range of areas; Obama isn’t going to nominate someone I think of as being an ideal judge, just like McCain would not have nominated someone a Democrat would have liked.

How would you like to see her grilled on the Commerce Clause?

Posted by Hal_10000 on 05/28/09 at 09:48 PM from United States

Basically, does she see any limits to the commerce clause?  Point out that some o the most controversial cases in recent years (Raich, Garcia) have centered around using the commerce clause to justify any action taken by the feds if it can be remotely tied to commerce.  Point out that this is going to be extremely relevant over the next four years as OBama expands Federal power into new areas.

I want to hear what she has to say about it.

Posted by on 05/28/09 at 09:53 PM from United States

One area I do disagree with you: The “wise Latina woman” speech seems fairly important to me. It’s important precisely because it is similar to the usual liberal blathering about diversity.

I don’t think people truly appreciate what many liberals mean when they talk about “diversity” and the underlying assumptions that lead to comments like Sotomayor’s. Exploring what that comment means and what it reveals about her mindset is important to that goal.

Posted by on 05/28/09 at 10:00 PM from United States

Basically, does she see any limits to the commerce clause?  Point out that some o the most controversial cases in recent years (Raich, Garcia) have centered around using the commerce clause to justify any action taken by the feds if it can be remotely tied to commerce.  Point out that this is going to be extremely relevant over the next four years as OBama expands Federal power into new areas.

I want to hear what she has to say about it.

Technically, the feds have to justify the action by saying the activity “in aggregate” impacts commerce. Realistically, it probably doesn’t make much difference; the courts will just defer to pretty much any finding that the aggregate activity will impact commerce.

I don’t think any liberal nominee is going to go against the expansive reading. Heck, just look at the dissents in Lopez and Morrison; liberals think banning a gun in a school zone is related to commerce! In any event, even if she thinks they’re wrongly decided, she can just say stare decisis would make her hesitant to effect any sweeping changes.

Frankly, it seems to me that most people WANT the government to have that power over us. The more interesting part, to me, is how she thinks that relates to the debates about the executive vs. legislative powers, and how the judicial branch is supposed to get involved in those debates. I don’t know what commerce clause interpretations can tell us about that, but especially after so many liberals blasted Bush for taking too much power, it’s funny to watch the same ones arguing the government should have more power over our daily lives. Many liberals don’t really disagree with sweeping executive power in my view, they just disagree with who was wielding that power and for what ends.

Posted by on 05/28/09 at 10:21 PM from Germany

OK, here’s the real reason that we all know she’s absolutely unqualified for the position: Obama nominated her.  Perhaps his 4th or 5th choice will actually be palatable…

Posted by on 05/28/09 at 10:30 PM from Germany

Look on the bright side--at least he didn’t nominate That Complete Fucking Idiot Jennifer Granholm, who is a poster-child for how to send a state’s economy straight down the toilet as quickly as possible.  Her name shouldn’t be floated for grocery-sack carrier, much less Supreme Court justice.

I can’t even imagine the harm that numbskull would do on the highest court in the land.

Posted by on 05/29/09 at 08:18 AM from United States

That Complete Fucking Idiot Jennifer Granholm, who is a poster-child for how to send a state’s economy straight down the toilet as quickly as possible

As a Michigander, I’ll disagree with you, as far as our economy goes.  Our one-horse show of an economy has been declining for decades.  Granholm was responsible for getting Google into the state, as well as the film industry.  That is just about all that Michigan has right about now.  She’s made mistakes in other areas, but I’m reasonable enough not to blame her for Michigan’s collapse—it was going to happen under anybody’s watch, considering that the entire thing was based on one single industry.

That’s about as far as I’ll defend her, though.

Posted by on 05/29/09 at 09:59 AM from United States

I’m not sure the GOP can win with any strategy here.  Even if we bide our time and gather facts, when the shit finally hits the fan, they’ll be derided for resting on their laurels.

Posted by on 05/29/09 at 10:18 AM from United States

I disagree.  That one quote is plenty concerning on it’s own.  Imagine it flipped around: I think that in general white males are better suited to make legal decisions simply because of their race and gender.  Would any judge that made such a comment be in the running for the SC?  Maybe in the 1800s, but not today.

Also, her inability to deal impartially with people who make up the majority of the population (whites) aside, she has said plenty of things that ought to disqualify her in the eyes of any true conservative.

A few examples; she has stated that policy should be dictated from the bench.  That is absolutely not the purpose of the supreme court.

Also her decision in the Ricci v. DeStefano is very troubling.  Essentially it is ok to discriminate based on race, so long as it is against whites.

One quote might not be enough to disqualify her (although it certainly would be for a white republican), and there are definitely those who are overreacting to this and exaggerating her liberalness/racism etc.  But even still, there are plenty of areas where Republicans can and should challenge her nomination.

Posted by on 05/29/09 at 01:05 PM from United States

Our one-horse show of an economy has been declining for decades.  Granholm was responsible for getting Google into the state, as well as the film industry.  That is just about all that Michigan has right about now.

Even at that, the film industry in Michigan isn’t quite as robust as it may seem:

Michigan’s efforts to lure film production have shown mixed results so far, despite such aggressive incentives as a law signed last year that offers cash refunds of 40% or more to productions that spend more than $50,000 in state. Hollywood studios have moved some individual productions to the state, such as the Clint Eastwood hit “Gran Torino,” which Time Warner Inc.’s Warner Bros. shifted to the Detroit area from Minnesota to take advantage of the rebates. But few have established a permanent presence.

So it remains to be seen how desirable Michigan will be over time for films as opposed to say, New Mexico, which has a very aggressive incentive package and is trying to develop the film industry on the local level as well.

I will concede your point that Michigan was heading downhill long before Granholm came on-board.

Posted by on 05/30/09 at 11:48 AM from United States

Imagine it flipped around: I think that in general white males are better suited to make legal decisions simply because of their race and gender.  Would any judge that made such a comment be in the running for the SC?  Maybe in the 1800s, but not today.

This is exactly the kind of stuff that the OP was talking about. Blowing a quote out of proportion and context.

She never said that Latina women are better suited to make legal decisions simply because of their race and gender. If you just hear that quote in isolation you might come to that conclusion. But in the context of the speech, she was saying that she hopes a wise Latina woman with her “richness of experiences” would more often than not reach a better conclusion than a white male, in cases dealing with race and sex discrimination. Not in all legal decisions.

That may still be a debatable point, but as a white male who has never had any experience with racial or sex discrimination, I would find it hard to argue against that.

A few examples; she has stated that policy should be dictated from the bench.  That is absolutely not the purpose of the supreme court.

Another prime example of something she never said. This meme came from a speech at a law school where she was talking about legal defense funds looking for people with Court of Appeals experience because “the court of appeals is where policy is made”. That’s not the same thing as saying “policy should be dictated from the bench.”

What she’s saying is simply the truth. The Court of Appeals does make policy in many ways, and in reality that is part of their job. The legislature makes the laws, and the laws are not always clear in every case, and the courts are often left with the job of deciding cases based upon unclear laws. And since the law is not always clear or explicit, those decisions become precedents, which are effectively legal policy until the laws are changed and clarified.

In an ideal world this would not be the case, but we live in an analog world, and legislators are not omniscient, so they can’t be expected to draft every law taking in such a way that it takes into account every conceivable situation that it could apply to.

The federal Court of Appeals is the number one place where these cases are ultimately decided, with a few trickling further upstream to the Supreme Court. Pointing out the truth of this situation does not make one a judicial activist.

Posted by on 06/01/09 at 10:44 AM from United States

The “you took that quote out of context” defense only applies when the quote would have a different meaning within said context. 

She didn’t claim that growing up poor, or in a particular area, or whatever would give her a better perspective.  She specifically cited her race as the deciding factor. 

A person who believes race/gender determines wisdom/intelligence is not qualified to be a judge. End of story.  I’d have the same opinion if she’d claimed whites are superior, or blacks, or whatever.  She has shown that to her race is a major issue and as such cannot be counted on to give unbiased opinions on anything regarding race.

And besides merely stating it, she ruled in favor of racist discrimination in the DeStefano case.  Essentially it is ok to block people from promotions (in her opinion) based on race, so long as they are white.  To me that flies in the face of everything we are trying to accomplish in this country.

Next entry: Of Jobs and Spending

Previous entry: NO gun for you!

<< Back to main