Supreme Court

Recent polls show the support for SCOTUS nominee Sonya Sotomayor is rather soft, with a small plurality supporting her confirmation.

I suspect that much of the general public became aware of the Ricci v. DeStefano decision, and favored the plantiffs, who prevailed before the Supreme Court.

Hopefully the early, over-the-top rhetoric from Rush and Newt doesn't deter Republican senators from doing a thorough job of ascertaining Judge Sotomayor's attitudes as related to multiculturalism, the second amendment, and judicial activism.

The public will accept the Republicans doing a "teach-in" on the role of the Supreme Court. And while it may be impossible to stall this nominee given the present margin of Senate control, we absolutely need to set a marker for any future nominee and meekly saluting him or her won;t do. 

Yesterday's decision by the Supreme Court to reverse Sonia Sotomayor's ruling on the New Haven firefighters case was undoubtedly a blow (albeit, not fatal) to the woman who aspires to sit on the nations' highest court. The Philadelphia Inquirer offers this viewpoint:

“Yesterday's ruling that white New Haven firefighters were unfairly denied promotions because of their race became an instant talking point for foes of Sotomayor.  "She was among three appellate judges who had rejected the white firefighters' claim of discrimination.  "Conservatives argued that the appellate decision showed her to be a judicial activist who allows biases - particularly her backing of affirmative action policies - to taint her judgment.”

As the article goes on to state, this ruling does not seem to be the death knell for Sotomayor, however the ruling puts a spotlight on one of politics' dirty secrets: Race. Even while Barack Obama and his family occupy the White House, the politics of race has become a double edged sword for the administration.

During his presidential campaign, critics were silenced by the accusation, or fear of the accusation, of being a racist, even as Obama used his background numerous times to debunk claims that he was “not black enough” from minority voters. Often, Republicans, long saddled with the racist label, were stunned into silence by the often vicious attacks from the left. 

Another example of racial politics occured during the press conference to announce Judge Sotomayor's nomination to the Supreme Court. While there have been calls from such organizations as the National Council of La Raza to focus on Sotomayor's judicial record, the White House chose to attempt to batter the public with feelings of guilt. There was:

“...the Inspiring Icon of the White House narrative, the Latina born in the Bronx, raised by her widowed mom who sacrificed everything for her daughter. With smarts and guts, Sotomayor graduated from Yale Law School, only to have her impeccable qualifications questioned by a prospective employer who'd been conditioned by race-based government policy to wonder if she'd made it that far only because of her Hispanic heritage.

"She's rightfully a beacon of hope to every Latina mother and daughter, from the Bronx to Chicago's Little Village and on to East L.A. The girls in the neighborhoods can see Sotomayor and aspire to greatness.

"But the other side of the story also speaks to racism. Not the knuckle-dragging kind shrieked by ignorant barbarians. That's easy to condemn, whether the knuckles are white, black or brown.

"Yet there is another kind. The media don't recognize it as racism and instead lard it with virtue, calling it by its Orwellian name: affirmative action. Yet many know it by what it is: government-backed racial preference.”

As an African American mom twenty plus years Sotomayor's junior, I lack the richness of her experiences, but not my own. Few people of color, or even those without a substantial income, do not have some type of compelling story. Poverty transcends race and background and many share a kinship born of struggle. However, that does not mean that special treatment or quotas are in order. Independent Columnist Michael Gaynor sums up this point well.

“It has been reported often that Judge Sotomayor graduated from Princeton College summa cum laude and was an editor of the Yale Law Journal, each a very impressive accomplishment, if achieved on the basis of merit.   "But, when Judge Sotomayor called herself 'the perfect affirmative action baby' and claimed inability to define merit, what was she really saying about her fitness to be a Supreme Court Justice?  "Did she mean that she was graded and judged less demandingly at Princeton and Yale and that was a good thing that paved her path to America's highest court?  "Is she 'perfect' for the position, or necessarily not up to par?  "Personally, I prefer to choose professionals, such as surgeons and dentists, based solely on merit.  "Likewise, I think that race-based grading and affirmative action Supreme Court Justices appointments are counterproductive indulgences better avoided.”

The inherent racism in the whole approach of the administration regarding nominations and attempts to silence critics have actually done more harm to minorities in general... Read more here.

Jon Henke made a post a few days ago, that was maybe a bit short on substance, but nevertheless made his point. Republicans have not done very well in the world of public opinion concerning their criticisms of Judge Sotomayor. While I agree that Judge Sotomayor has said some unfortunate things, the way that some of the comments by Gingrich, Rush, Steele, and others have come across have not helped our case. I made some responses to Henke's post on why I thought that these individuals were being given a microphone. However, what was even worse than the failure of those perceived to be leaders on our side to effectively criticize Judge Sotomayor were the comments made in response to Henke's post. Here, I respond to Henke's call for Republicans to "grow up" in a meaningful and constructive way with how I would go about questioning Judge Sotomayor as a Republican Senator on the Judiciary Committee.

Sen. Bannon: Good morning Judge Sotomayor. Allow me to be one of the first to welcome you and you're lovely family here to the Senate. As you know from your distinguished career, but for the folks watching on CSPAN or Youtube or on the nightly news, we are here today because of the Senate's role under Article II of the Federal Constitution to give advise and consent to the President when he should have the opportunity to appoint a nominee to the Supreme Court. It is one of our many functions as a check on the two other branches of government,  the Executive, in the form of the President and the Judiciary, in the form of the Supreme Court.

As is the case with most likely all of the Supreme Court nominees that the Senate gets to question, your credentials are impeccable. So much such that I will only briefly review them to acknowledge to all paying attention that you are most definitely qualified on paper to sit on the Supreme Court. Princeton Undergrad and Harvard law,  ultimately culminating in a Judgeship on the 2nd Federal Circuit Court of Appeals and nominated by the President to sit on the highest court in the land. Your achievements stand as accomplishments to be proud of and let us hope that you are placed as a role model for those outstanding achievements in the lives of all of our young.

Judge, there is a lot going on outside right now. The newspapers and other media are paying attention. Right, left, up down, crisscross are all paying attention and have been screaming ever since you were nominated. In fact the entire world is most likely paying attention, but you know what Judge, I want to bore them to death. I want to sit here, just two people, a United States Senator and a United States Judge, and have a scholarly conversation about that great founding document of ours, the Constitution of the United States, only with the realization that the points that are made in our scholarly conversation can indeed be very exciting and have real world effects despite sounding like we are up in the clouds. Do you think we can do that Judge?

Judge Sotomayor: Of course, Senator Bannon.

Sen. Bannon: Good Judge, then lets get right to it and lets get the main thing that has been causing all of that screaming and manuevering out there, and lets get it out of the way and then lets move on to bore everyone. Judge Sotomayor, Do you believe that the Constitution of the United States is colorblind?

Judge Sotomayor will then answer the question but no matter what she answers we should just let it go. Either she will hang herself and say that the Constitution is not colorblind or else we will look like we are badgering her about a petty issue.  I say we should move on, because there are a number of other Constitutional questions that I will outline below that are much more important than whether a Judge thinks Latina women are better than White men, because Judge Sotomayor will practically speaking never be able to rule that Latina women are better than White men in any form whatsoever.

Other Questions I would ask Judge Sotomayor: (Note: It is her failure to answer these questions that I would press her on. Here we are treating her as any other normal nominee, questioning her judicial philosophy on things likely to come before the court, not getting in a battle about race with the first Latina woman every nominated to the Supreme Court).

1. Does the dormant commerce clause exist? If so, please explain how you would approach a case dealing with the dormant commerce clause.

2. Can you please discuss your take on Youngstown Sheet and Tube v. Sawyer, specifically addressing Justice Jackson's 3 part  concurring opinion?

3. Can you discuss your view of the 10th Amendment's role in the Constitution?

4. Can you please discuss your take on the caselaw leading up the decision in Kelo v. New London? (Notice that I did not ask her view on this case, because she will give the "its an issue likely to come before the court" response. But there would be no reason not to discuss the two important cases that were cited in Kelo).

5. Do you believe that Miranda rights are Constitutional rights?

6. Can you please give us your definition of Pornography? (Tie this into some statement about how more and more children are preyed upon because of online predators, etc.)

7. Could you please give us your opinion of the standards the court must look at in determining whether enough has been met under rule 8(a) of the Federal Rules of Civil Procedure?

8. Can you please discuss the equal protection clause of the 14th Amendment and how you would have applied it if you had been on the bench when Korematsu came to the Court?

9. Ought international law be used in interpreting the Constitution of the United States?

10. Does the Constitution permit the legislature to strip the United States Supreme Court of jurisdiction over an issue?

Note: Most of these questions are not particularly hot buttoned topics and, if they are, they are certainly not framed that way. Secondly, for most of these questions, the standard "non-answer, answer" would not only be unacceptable to the right, but would likely be unacceptable to the left as well. These are the types of questions, for a myriad of reasons, a judicial nominee would have to provide some type of answer to, or else there could be a case made to the majority of the American people that there was a valid reason to vote against her/him. 

There's been much gnashing of teeth on the Right about some rather simplistic attacks on Judge Sonia Sotomayor charging her with being a "racist".

Well, this is inflammatory, overblown and self-defeating.  It's pretty obvious that the frequent and deliberate "wise latina" comments don't rise to the commonly understood level of the term; nor is there evidence in her opinions that rises to this level.

On the other hand, a less emotionally charged term might fit here.  Do the numerous speeches given by Judge Sotomayor represent that she believes in multiculturalism?   

The traditional American cultural template is that while each group that enters our society enriches us, all join in a common nation sharing common goals.  E Pluribus Unum and all that. Multiculturalism turns this on its head, that we are members of separate groups first, and Americans to the extent we choose to align ourselves.

from Wikipedia: 

In 1991, Arthur M. Schlesinger, Jr., a former advisor to the Kennedy and other US administrations and Pulitzer Prize winner, published a book with the title The Disuniting of America: Reflections on a Multicultural Society. Schlesinger states that a new attitude — one that celebrates difference and abandons assimilation — may replace the classic image of the melting pot, in which differences are submerged in democracy. He argues that ethnic awareness has had many positive consequences to unite a nation with a "history of prejudice"; however, the "cult of ethnicity", if pushed too far, may endanger the unity of society. According to Schlesinger, multiculturalists are "very often ethnocentric separatists who see little in the Western heritage other than Western crimes." Their "mood is one of divesting Americans of their sinful European inheritance and seeking redemptive infusions from non-Western cultures."

There's a big difference between the usual bean counting by ethnic, geographic and political groups (which it's clear Judge Sotomayor has engaged in) and being a multiculuralist.  I too want to see people of my background properly represented in the institutions of society. A multiculturalist wants to do this to change the institution itself. It's reasonable to ascertain if a nominee seeks to accomplish that and determine how comfortable we are with that approach.

The frequent appearance by this jurist before a group labelling itself "La Raza" is a reasonable place of inquiry: to what extend does she share this group's goals and agenda and to what extent does that influence her future judicial conduct?  Certaintly it is as reasonable a point of inquiry as whether a jurist is a member of the Federalist Society? 

In this venue, the summary treatment of the Ricci case may provide insight: that a reverse discrimination claim appeared not to be of sufficient weight  to warrant an elaborate legal  review. Perhaps the Judge doesn't see when do we reach the end of the affirmative action road as viewed by Justice O'Connor?.

I also reject that all Hispanic lawyers and jurists are of similar mind on these points: to that end I'd like to hear from the likes of Marco Rubio and Ted Cruz on this nominee's agenda.

In the late 1990's former NYC Mayor Giuliani challenged the application of multiculturalism in the administration of justice.  His approach was "One City, One Standard".  As a NY resident, it should be hard for the Judge not to have an opinion on the wisdom and efficicacy of Giuliani's race-neutral approach to governance.  The rest of America ought to get a sense where she stands on this. 

And abrasive name calling simply makes it easier for her to duck the important philosophical questions she ought to address. 

Judge Sotomayor is an experienced appellate jurist who is qualified to be promoted and probably will be confirmed. Are we going to use this to make this a teachable moment on what judicial policies we favor, or will we just let this pass?  

The debate over whether and how much Senate Republicans should oppose Sonia Sotomayor is grinding along. I personally don't think it's the worst thing in the world if Republicans got more aggressive than they currently seem to be comfortable with, and for the following reasons. 

Not Blowing the Whistle on a Solid Liberal Like Sotomayor Creates a Bad Precedent for Decades to Come. The left is trying to spin the Sotomayor nomination as a pick in the mold of what moderate conservative John Roberts was to Bush -- a moderate liberal "slam dunk." In reality, she is more like the liberal Sam Alito, whose strongly conservative tendencies were seen as a suitable replacement upon Rehnquist's death (remembering that Roberts first had to clear a lower conservative bar to replace Sandra Day O'Connor). Is there any doubt that Sotomayor wouldn't at least tie Ginsburg and Stevens as the biggest liberal on the Court?

The calculus is this: if you let a leftist judge sail through where an Alito would get at least 40 no votes you create a precedent whereby it's considered okay for Obama or future Presidents to nominate far-leftists with impunity, while conservatives always have to jump through extra hoops. The President gets his judges most of the time, but differences are made at the margins.  Republican Presidents will always have an incentive to be more cautious or play games with Supreme Court picks, as Bush tried to do in nominating Harriet Miers, which was initially seen as a play to placate Harry Reid, who wanted a non-judge.

In past years, Senate Democrats have been far, far more aggressive in stalling Bush judicial picks than even Republicans were in the late Clinton years. Republicans played up their light treatment of liberals Ginsburg and Breyer during the 2005 court fights, even coining the term "The Ginsburg Precedent" to legitimize bipartisan support for an ideologue with judicial credentials, but where did this get us exactly? The media's playing up the danger of opposing a minority is cruelly ironic in light of the Democrats' shameful treartment of Miguel Estrada and Janice Rogers Brown, and their specific strategy of Borking minority conservatives to lower courts to head off a future Supreme Court pick. Schumer and Co. play for keeps, and Senate Republicans should not be afraid to do the same when we are talking about lifetime appointments. 

We Can't Be Afraid of Legitimate Criticism of the "First" Minority. Much hay has been made of how delicately Republicans will have to handle the first Latina nominee, as though the media assumes that the GOP's first instinct would be to race-bait.

Well, here's some news: Sotomayor is not the only "first" minority on the political scene today the media routinely shields with a protecting coating because of the genuine historicity of their rise. Another lives at 1600 Pennsylvania Avenue. Many of the same reasons for treating Sotomayor "delicately" were brought up as reasons for treating Obama delicately last year, so much so that the heroic self-conception of the press as a check on the government has become disturbingly laughable.

Republicans cannot shy away from legitimate critcisms of Sotomayor's job performance and judicial philosophy, just as we will have to learn to more effectively criticize Obama. If you concede the point that criticism of an historic, "first" minority is out of bounds, that doesn't say much for GOP prospects for the next eight years.

At the same time, we will need to ostracize those who would bring ethnicity into the equation. If Republicans don't like the tenor of the opposition, we should not be afraid to nuke the bad actors on our side while amping up criticism of Sotomayor's legal record. The trick is not so much being delicate but being rough both with the left and certain people on the right to insulate against charges that our opposition is anything other than policy-based. The ideal messaging to my mind would be as follows:

1. Tom Tancredo is an idiot.
2. Sotomayor's decisions, her stated penchant for "making policy" from the bench, and her high reversal rate among those she aspires to join all render her nomination profoundly troubling.
3. Tom Tancredo is still an idiot.

Remember also: Supreme Court fights are inherently elite D.C. fights. Don't expect voters, even Latino voters, to passionately engage. Most people correctly perceive the Court as being far removed and even irrelevant to their daily life and whether they will keep their job -- and that's as it should be. Has there ever been a mass movement for or against a Court nominee, even a Thurgood Marshall, a Sandra Day O'Connor, or a Clarence Thomas?

For Republicans in the Senate the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.

I have occasionally defended some of Bush's well intentioned mistakes, but there's no way to put a happy face on this one, because it is going to put a woman on the highest court in the land who believes that judges should write the laws, that some racial and social groups are more worthy than others, that gun rights aren't really protected in the constitution, that government can seize your property without due process and give it to businesses and that free speech is a privilege granted by government to some and not others.

The problem which faces Republicans in this nomination, is that they will likely find themselves unable to filibuster or oppose Sotomayor with any vehemence because she is hispanic and a woman with a record of flaws which are ideological rather than ethical. Already great pressure is being exerted on GOP senators from party leadership to go easy on Sotomayor to earn some credit with the administration for the future. The fear is that opposition to Sotomayor may cost Republicans hispanic support at a time when they need every new vote they can get and when hispanic Republican politicians are rising on the national stage, increasing hopes for a breakthrough with that constituency.

The irony is that this would not be nearly as much of a problem for the GOP had it not been for a little noted failure of the Bush administration. The seeds of this situation were planted back in 2005 when Sandra Day O'Connor was retiring and Bush floated the names of a number of hispanic judges as potential replacements, including Emilio Garza, Alberto Gonzales and Consuelo Callahan. In each of these cases Democrat Senators told President Bush that he would face a filibuster against the candidate and his response was to back down and look for another nominee who was more acceptable to Democrats. The problem with this morally weak strategy was that it meant that despite his desire to apppoint the first hispanic justice, Bush threw away that opportunity and the chance it provided to score points with hispanic voters and now that opportunity has been handed to the Democrats.

In 2005 Bush should have picked the best qualified of the hispanic candidates -- probably Emilio Garza -- and nominated him and taken his chances with a filibuster. Or he could have nominated the ever-cooperative Alberto Gonzales with the specific expectation that he would be borked for the team. That would have put the Democrats in the position of having to attack and filibuster a hispanic nominee, costing them support in that community and making the administration and the GOP look like they were the ones fighting for the advancement of minorities in government. Even though the nomination might have been blocked the result would have been an enormous boost in popularity with hispanics for the Republicans and a ding on the civil rights record of the Democrats. It's also entirely possible that the Democrats might have been bluffing and would have backed down to avoid seeming hostile to a hispanic nominee.

As in other situations, Bush played politics like an amateur and failed to push what should have been an obvious advantage and the Republican party is still paying the price of that mistake. If Bush had played the situation the right way in 2005 then today Sotomayor would not enjoy the immunity conferred on the first hispanic Supreme Court nominee, the GOP would be stronger overall, and might be able to oppose Sotomayor if their ideological concerns are strong enough. But as a weakened party desperate to be liked, the GOP may very well have to bite the bullet, sacrifice principles again and roll over and accept Sotomayor despite her troubling record. And yes, you can blame Bush for it.

Yesterday Barack Obama announced his selection for the vacating position of Justice David Souter on the U.S. Supreme Court.

Not surprisingly, Mr. Obama as the ultimate "politician" used as his criteria for selection not merit, or published opinions balanced against the Constitutional basis or findings - but instead his views on balancing the Court with a member who was in his mind "politically" correct, and an activist in their interpretation of U.S. law.

In other words, one who would not rock the boat on his political agendas and policies, rather than one as an intended "check" on those policies in order to retain some semblance of our Constitution and intended form of government.

And who did he choose?

An announced "Hispanic" woman, educated at Princeton University (a rather "liberal" teaching institution with respect to the law, which focuses more on judge made or case law than it does our Constitution or history, and questioning some of the U.S. Supreme Court's rather progressively unconstitutional decisions).

Princeton, Yale, Harvard and Stanford are the equivalent of Oxford in England, in teaching that the government is "sovereign," and diametrically opposed to the actual foundation and provisions within America's own Constitution, where it is the people and Constitution which are "sovereign" and the government at all levels beneath and limited by its express provisions and terms.

Look for Obama now to push for an illegal immigrant amnesty ala George Bush, no matter that the border state residents are now involved in an undeclared war of their own down on the border, and losing their homes and lives at an increasing rate due to the federal negligence in getting our southern borders secured now almost eight years post 9/11.

Mr. Obama is more concerned with "looking good," than doing the right thing, or following the law at any level.

And appears the Ivy League schools themselves just may need some political "balancing" in their teaching staff, so that the practice of law in this country returns to the profession it once was, and not the political industry it has become.  And without any oversight other than by a British carryover and political organization, the American Bar Association.

It seems the "dumbing down" of America is nowhere more evident than at the graduate school level, if Mr. Obama and Ms. Sotomayor and their views of "the Law" are any indication. 

the indignities, connivance and dirty tricks of Democrats (including VP Biden) toward another person of color, now Supreme Court Justice Clarence Thomas. It was awful what they tried to do to him. Truly ( as Thomas himself described it) it was a new form of "lynching". Let us not forget how the press interpreted what happened back in 1991.

If Republicans even breathed in this manner toward Sotomayor, the press would be all over them in rebuke.

Media bias still lives.

If anything, she must be attacked on her liberal record, not the way Democrats tried to personally attack Clarence Thomas.

I'll offer some minor points on this issue.

a) With all due respect to Cahnman, the America public expected a diversity pick on this one. You are simply not going to see more than six white men on the Supreme Court again in our lifetime.

That said, this is a great opportunity for the GOP to showcase Hispanic lawyers and challenge Judge Sotomayor not on her quite appealing personal story, but on what her ideology is towards the place of the judiciary.

I would suggest that the campaigns of Marco Rubio and Ted Cruz might want to step up and define what they believe the proper role of a Supreme Court Justice is.  

We shouldn;t make this nomination a matter of identity politics. The best way to make this a debate over ideas is to show liberal ideology isn't obligatory for those of Latino background.

b) While Roberts and Alito got in after her departure. Sotomayor is the de facto replacement for Sandra Day O'Connor.

O'Connor was widely respected for her moderation. A 2005 poll found she was viewed favorably by 57% of the public, unfavorably by 11%, making her probably the best known and most popular jurist of modern times.

Our mission is to try and get Judge Sotomayor to meet the level of performance the last female justice achieved. If she seems less than Justice O'Connor--especially in seeming to be less evenhanded--we will gain.

For starts, we should ascertain if Judge Sotomayor is supportive of Justice O'Connor's dissent in Kelo.  . Since O'Connor's dissent was far more popular among the American public than the majority opinion which expanded state power, this will be an interesting test of how willing to depart from orthodoxy the Judge is willing to go.

I'm sure the Second Amendment folks will want to grill her on Heller as well. 

The bottom line is if we fight over this nominee's biography we are cooked.  We need to contest her agenda. The next Obama nominee is unlikely to have such a compelling sales pitch and we need to set the table now to make sure the likes of Harold Koh never darken the door of our highest Court.

Sonia Sotomayor's nomination to the Supreme Court is roughly twelve hours old, and already would-be GOP leaders Mitt Romney and Mike Huckabee have made much of a comment she made at Duke Law School where she supposedly claimed that the court of appeals is "where policy is made."  I'm all for honestly opposing bad selections to the Supreme Court, but I'm not sure that this comment - in full context, mind you - automatically makes Sotomayor a flawed nominee.  For reference, here is the full quote in context:

"All of the legal defense funds out there, they're looking for people with court of appeals experience.  Because it is - court of appeals is where policy is made.  And I know, I know, that this is on tape, and I should never say that.  Because we don't make law, I know.  Okay, I know, I know, I'm not promoting it, and I'm not advocating it, I know.  Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating, it is interpretation, it is application."  

The talking heads of Romney and Huckabee (in rare agreement, for once) spent this afternoon focusing on the first part of the quote while ignoring the second part, where Sotomayor emphasizes that the crucial aspect of decisions made at the court of appeals (and, I hope she realizes, other lower level courts as well), is the interpretation and application of statutory law and Supreme Court precedent.  There is nothing wrong or unconstitutional about this: as any first-year law student knows (although apparently Mr. Romney, who earned his JD from Harvard, has forgotten) appellate courts do have the power to interpret and apply the law to specific situations.

Sotomayor may still end up being a flawed nominee.  I am impressed that she recognized the Bush administration's authority to prefer anti-abortion measures, and I still need to do more research on the New Haven firefighter case.  If there are grounds to oppose Sotomayor, they should be based on her actual decisions, and not on a suspect phrase from a talk to law students that is not an actual reflection on her judicial philosophy.  Republican lawmakers have better things to do than to seek to make Sotomayor "an offender for a word."  I hope that their critique will be focused on actual issues, not on the distracting drivel that Romney and Huckabee tried to push today.