Well, Judge Sotomayor has now been nominated for a number of weeks, and she has had plenty of time to formulate a post-hoc rationalization for her widely cited statements on making policy on the bench (which in effect implies that judges are unelected legislators) and the "wise Latina woman" will make better decisions than a white male. My honest first reaction to hearing the latter was to say, "Tell us, Judge Sotomayor, where we might find such a wise Latina, because she would never have made your statement." Of course, I saw her related statements as self-serving, presumptuous and defensive, although consistent with the hypocritical political correctness pervasive in most universities today. It's one thing to argue that Latinas are just as capable of coming to the right judicial decision as any white male; that's not what Sonia said, and if anyone should be sensitive to stereotypes, those who have experienced prejudice should be more sensitive. How does she know whether a white man has himself faced adversity for factors behind his control (e.g., growing up poor, maybe orphaned)?
What is essential to her Latina background that inherently makes for a better judge? Does she think, say, the privileged daughter of a wealthy Mexican landowner would bring to the bench the same insights or judgment she has? The idea, even granting "empathy" is legitimate for the sake of argument, that only minorities are capable of empathy is patently unfair; after all, it was white men whom freed slaves, passed key civil rights reforms and expanded suffrage, including to women. And why is it virtuous to consider factors extrinsic to the merit of any case? As any jurist should know, words of a judge do matter.
If I was on the Judiciary Committee, I would ask the good judge just what evidence she considered, and whatever rules of evidence she applied, in terms of making that claim--which Latina and white male judges, how she established they were statistically representative of the underlying populations, which judicial decisions she considered and their representativeness, and what well-established judicial, validated metrics she used to evaluate those decisions. Also, if a defense attorney appealed to the Supreme Court, arguing that the Latino judges during the federal path of pursuing the suit have unanimously ruled on behalf her client, even though the majority of judges ruled against him, since Latinos are better judges, would Sotomayor agree the decision should be reversed, regardless of the case particulars?
Senator Sessions, in his opening remarks, quickly rattled off a number of Sotomayor decisions on substantive issues involving the Bill of Rights. Senator Coburn has a problem with Sotomayor's openness to consideration foreign law, which is not a salient factor in deciding Constitutional issues.
In contrast, the Democrats have resorted to the same old same old. They are attacking recent nominees, applying simplistic outcome-based measures, e.g., to classify Chief Justice Roberts' record as anti-defendant. We hear the conservative-led Supreme Court has been "activist" (e.g., Feinstein, Whitehouse, and Franken), ignoring precedent in upholding the Bill of Rights, including an individual's right to be able to defend his family (the Second Amendment) There has been discussion of Safford Unified School District #1 v. Redding, which involved a middle school's strip searching a 13-year-old girl for prescription drugs. (Only one Supreme Court justice, Clarence Thomas, voted to uphold the school district.) The Ledbetter decision was revisited (this one was one where the relevant law has a limited time span to raise issues with alleged past discrimination; Ledbetter wanted to allege a relevant incident going back years, for which few records were retained and key witnesses had died and to claim a compounded windfall recovery. This simply would have nullified any reasonable window and put an undue burden on business, plus it would give alleged victims of discrimination an arbitrary time period, say to wait out availability of witnesses, and not give company management the feedback it needs to make timely changes.) There have been attempts to portray that Sotomayor has voted with the majority of judges (which is misleading because in most cases the judges have little discretion based on precedent), while not addressing her Supreme Court reversals, including the Ricci case
There has been continued reference to Sotomayor of her being the most "qualified" appointee ever to the Supreme Court, referencing her 6 years as a district judge and 11 as an appeals court judge. This is rhetorical nonsense, of course. For example, Sam Alito spent 5 more years as an appeals course judge, plus several years working under the Justice Department as a prosecutor, bringing cases before the Supreme Court. If we are really going to go to tenure on the federal bench as a primary criterion, Obama should have picked someone like Judge Richard Posner, whom has served on the Chicago circuit since 1981.
Sotomayor gave an undistinguished, plain vanilla statement, long on her biography (to which all senators bent over backwards paying tribute) one which I think was rather evasive than substantive. For example, in a theoretical response to questions about her judicial philosophy, she said that she applies laws, not makes them. This is rather like a bricklayer being asked how he's going to build a house, saying he's going to use bricks.
At least she didn't treat the hearings like one of her public speeches. Sonia Sotomayor might have gotten in trouble if she had said that the function of the Congress is to fund the policies that Supreme Court justices make or that smart Latino legislators would make better laws than the white people on the Senate Judiciary Committee.
Obama Administration About to Start Persecution
on the Bush Administration?
CIA Director Leon Panetta, probably looking to change the conversation after his recent kerfuffle with Speaker Pelosi over the speaker's state of denial about having being briefed on enhanced interrogation techniques, reported that former Vice President Dick Cheney had ordered the CIA to keep the lid (in front of Congress) on some covert project which Panetta recently killed. From what I understand, the project was never put into full operational mode and centered around taking out Al Qaeda operatives. Senator Feinstein and other Demagogues Democrats are attempting to suggest that Cheney was "illegally" attempting to hide the program from Congress. My understanding is that Congressional oversight was required at a certain critical stage of implementation, which in fact it never reached. I think the Democrats really should think twice about escalating this issue politically--it's a double-edged sword. I really don't think the American people are going to understand why Leon Panetta would want to kill a program that takes out Al Qaeda.
There are also reports that Attorney General Eric Holder and Obama are looking at perhaps a special prosecutor with respect to whether enhanced interrogation methods during the Bush Administration were applied outside of guidelines. It does not look like they are targeting lawyers whom wrote opinions in favor of allowing a tempered form of waterboarding. I do not know the specifics of the guidelines. The basic concept is, for example, if the guidelines allowed something like 5 applications, but the interrogations consisted of over 100 applications, the CIA manager approving the excess applications would be subject to prosecution. Again, this is a double-edged sword. I don't think most Americans are worried about the CIA being too hard on three high-level Al Qaeda operatives at least in part responsible for what happened on 9/11.
Obama and Holder have to be very careful; Obama's approval rating has recently dipped below 60% (and about 53% among independents); I saw one poll this morning that now puts disapproval of Obama's health care proposal over approval for the first time. Anything that looks like a broken-promise Obama wag-the-dog vendetta against the Bush Administration not only will burn bridges with Congressional Republicans but will likely have a significant impact on next fall's election.
More from "The Little Engine That Couldn't
(Reach the End of Her Term in Office)"
I think the Republican Party needs to be very wary of Sarah Palin. She has been talking about taking things in a new direction and lately has suggested that she could campaign for conservative Democrats agreeing with her. I think she realizes that she has no shot of winning the GOP nod in 2012; she sees that even with the highest favorable rating among GOP contenders, she hasn't placed first in any of the polls. I think this reflects the fact that Republican mostly identify with Palin not because of her qualifications, but given the way she has been persistently and personally attacked by the Angry Left. I think Palin, to a certain extent certainly deservedly, saw the overflowing crowds responding to her; often even larger than McCain's own. She is clearly taking notice of the tea party movement, knows that they are disgusted with both parties when it comes to fiscal discipline (although, to be fair, it was a Republican House that delivered the balanced budget during the Clinton Presidency). She also knows that tea party movement is attracting a crossover element, including some conservative Democrats. I think she's looking an independent candidacy, but I think it's more likely that a Palin independent candidacy would be more like Anderson in 1980 than Perot in 1992.
From her recent Time Magazine interview:
President Obama is growing government outrageously, and it's immoral and it's uneconomic, his plan that he tries to sell America. His plan to "put America on the right track" economically, incurring the debt that our nation is incurring, trillions of dollars that we're passing on to our kids, expecting them to pay off for us, is immoral and doesn't even make economic sense. So his growth of government agenda needs to be ratcheted back, and it's going to take good people who have the guts to stand up to him, stand up to him and debate policy, not personalities, not partisan politics, but policy to effect the change that we need there.Palin's analysis is superficial and judgmental (in particular, the term "immoral"). First, we have the worst recession in decades which is deeply cutting into tax receipts from individuals and businesses while relief spending goes up. Second, it's not just the Obama Administration, but the Democratic leadership in the House and Senate which refuses to negotiate with Congressional Republicans in good faith--and given Senator Franken from Minnesota, making Democratic vote #60 for a theoretically filibuster-proof Senate--even less reason. Third, Obama is trying to run up the score while he has solid Democratic majorities in Congress. Fourth, cutting government spending is notoriously easier said than done (Obama announced $17B a few week back--little more than a drop in the bucket); the Democrats claim that they will find new programming initiatives from existing programs ("pay as you go" )
I don't have any major problems with what she's saying or criticizing, and I do think there are ways to get to where we need to go, but we are going to need to negotiate in good faith and being flexible with the Democrats. Unfortunately, the kind of change we need is going to require a less polarizing leader than Palin , pro-growth policies, compromises and better leveraging of federal money.
