Tag Archives: Sotomayor

Leash SoSo Tight

Does anyone else feel a little violated to learn that the White House chose Justice Sotomayor’s confirmation outfits?

Says the WSJ blawg, citing the New Haven Register (which culled from Sotomayor’s private speech by interviewing reunion attendees):

Justice Sonia Sotomayor, whom we’ve learned likes to talk, gave a speech Saturday night saying her nomination process was so tightly scripted that the White House picked out her dress.

Obvi Sonia, J.’s confirmation was just a formality.  Still, isn’t choosing her clothes a leeetle bit too much?  I get that the White House <3’s her, but when does inter-branch meddling cross the line?

Of the nomination:

Meyer recalled that Sotomayor grew teary at moments when discussing the nomination process, but kept the crowd laughing. Sotomayor even explained that she’d gone shopping for clothes to wear to her acceptance ceremony, but government officials instead told her to bring five suits, one of which they would recommend for her to wear, Meyer said.

I feel a little like this administration is a grand hand holding the Ouija guide.  We’re spelling out a message the White House assures us comes organically from beyond. But the clearer the messages gets it’s becoming patently obvious it’s not coming from anywhere but that omnipresent hand.

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The Flaccid Fourth Estate

Last year I asked myself repeatedly why we kept talking about Britney Spears’s ladyparts.  I wondered how an ungraceful limo entrance heard round the world could supplant everything more urgent, if not more critical, than Britney’s hoochie-cooch.

The answer, of course, is obvious: We pay for it.  Why would we seek out nebulous concepts buried in spin when Britney’s right there?  And she’s underdressed! And now she’s shaving her head!

I’m fortunate to live in a place where I have instant access to the viewpoint I prefer.  There’s no question we have some response to what’s up in this country.  There’s simply not enough of it to counter the oppressive “act first, think later” attitude that prevails.

Right now we’re looking at a unified Executive-Legislative one-two punch.  Legal scholars have added their collective voice to this collective thinking, calling for the Supreme Court to move further to the left.  Indeed, a few major left-leaning Constitutional scholars have begun to call for a Rooseveltian Court-packing scheme to “prolong [their] majority.”  Even without packing, the Judiciary may well move substantially to the left before Obama’s first term ends.

Traditionally the media provides a sort of “fourth check” to balance the government.  Arguments in the First Congress surrounding the passage of the First Amendment suggest that maintaining an objective media is a huge part of why the Bill of Rights passed at all.  The first of few enumerated rights, critical to our structure of government, is our ability to criticize.

Checks and balances have more to do with sharing powers than distributing them.  But in this past year the fourth branch has utterly failed to keep the government (“Big G”) in check.

Start with the legislature.  We’re seeing some massive bills rammed through the works.  Our unified Congress has brazenly expressed its determination to pass as much legislation as possible before 2010.  If you check Drudge this morning there is a list of pork included in the health care bill that includes actual pork: $1,191,200 for “2 pound frozen ham sliced”; $16,784,272 for — no joke! — “canned pork.”  Not only are these government-expansion measures blatant, encounter little complaint from the media.

In fact, the filibuster-proof legislature has been using the fourth estate to hasten its expansion.  Right before the first (or second, if you count Bush’s 2008 stimulus) bail-out we saw a flurry of fear-mongering propaganda among the major left-leaning news sources to stir up reactionary responses to the recession.  Without that propaganda, popular resistance would likely have hindered the bail-out from passing.  Markets may have found their way back to their feet by now.  But because so much main stream emphatically backs our otherwise-unchecked government, we see deference where there should be skepticism from the press.

Failure to check the Executive proves even more dangerous.  Honduras (Zelaya) coverage [last summer] represented perhaps the most egregious example of the media’s failure to perform its “check” duty as Fourth Branch.  Countless networks continued for months to refer to military action in Honduras as a “coup”!

If anything, that was President Obama’s greatest coup yet.  Honduras merely attempted to maintain its constitutional government and dignity abroad.  But the American president sided with such revolutionaries as Chavez and Castro to quash the rule of law in Honduras with one rhetorical fell swoop.

When former President Bush toed the Rule of Law line the media immediately – and rightly! — pounced to demand adherence.  With Honduras we should have seen a monolithic media declaiming Obama’s actions and demanding that we respect the rule of law.  We don’t want an irreverent media; we just need a press corps that does not behave like the President’s deferential interns, making a Lewinski of the Fourth Estate.

President Obama repeatedly takes advantage of media deference.  Last month he penned a Washington Post op-ed filled with rhetoric and aimed directly at latte-sipping, arugula-eating elites.  Kudos to the President for acknowledging that the bail-out failed.  But a Sunday morning “fireside editorial” is NOT the way to address those most affected by government failure.  Karl Rove mocked the president’s rhetoric in a subsequent Wall Street Journal column.  This was the extent of the fall-out calling for more action than rhetoric.

Rather than spin feeble verbal circles, the Executive branch should release its death grip on industry and permit markets to work.  As long as President Obama continues to apologize even while persevering in using Big G as a reactionary tool we will only see more problems.  An active “fourth branch” media check could demand results and halt further disingenuous appeals to elites who don’t know and don’t care.

Finally, in the least dangerous branch, an overly deferential media failed to demand soon-to-be Justice Sotomayor’s perspective on legal policy.  For the duration of last month’s hearings we all waited with bated breath to hear Sotomayor betray her position on…anything!  She never revealed a single viewpoint, and her adoring fans in the press took it in stride.

Without a media check we will inevitably see the judiciary follow the rest of Big G to spin further and further from responsibility to the political process.  With the rest of the government so united, a weak Judiciary will be a huge detriment to the future of our constitutional republic, and indeed, to the future of our Constitution.

Now is not the time to nod sheepishly and admit that we have not read the bills.  The First Amendment may cover Britney’s ladyparts better than she covers them herself, but this was not why 1A was passed.  The media can keep the government responsible, but deference is not the way.

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More on Race and That Other Stuff

Insulted by the WaPo calling Sotomayor “Souter w/ a salsa beat,” Andrew Cline asks: What if she were white?

Of the nine paragraphs in the New York Times endorsement, five mention her race and sex. Were Sotomayor a white male, the Times would have 55 percent less to say about him.

Washington Post columnist Ruth Marcus wrote yesterday that Sotomayor was “Souter with a salsa beat.” Because Sotomayor is Hispanic we can assume she comes “with a salsa beat”? How is that not an ethnic stereotype? What if Sotomayor doesn’t like salsa music? If she were black, could we say she is Souter with a hip-hop beat?

See my opinion on the race stuff here. More immediately I think Sotomayor is qualified, I just don’t like her opinions. If she didn’t bring this reggaeton to the table the Times would likely focus those five paragraphs on her jurisprudence. And that would likely be a much stronger indictment than all of this “affirmative action” finger-pointing.

Like Obama, Sotomayor is an eminently qualified candidate in a sea of similarly qualified individuals. Both offer inspiring stories that put them over the edge. I see nothing wrong with that. I agree that an inspiring story brings more to the table than a little extra Latin on a resume — which, incidentally, appears in droves on the resumes of both BHO and SMS.

I’ll say it again: Focusing on someone’s jurisprudence and record carries a lot more weight than focusing on his or her race. Conservatives should stop engaging in these mini-trials re whether “diversity” is criteria enough and should start discussing those criteria that are actually, empirically relevant. The latter category is indictment enough. The former is not. Eye on the ball, people! This kind of issue blurring is what fractured conservatives in the first place!

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Are we all a little racist?

At the risk of asking the unpopular question: Doesn’t it feel like politics have turned into a witch hunt?  

Republicans accuse dems of playing “affirmative action,” e.g., acknowledging and focusing on differences traceable to “race” rather than on what we all have in common.  Democrats’ “racism” cries started when Obama became the big POTUS contender and continued until, well…I’ll let you know when it ends.  And it’s totally deserved.  Look at us.  How many times has the word “Hispanic” been uttered just today?

The point is that all we’re doing is focusing on race.  Racism is just that: focusing on what’s different among us.  Even many of Sotomayor’s biggest fans are primarily enthused because she brings the “Puerto Rican voice” to the table.  In his nomination introduction Obama himself focused on her backstory rooted in “diversity” rather than on her huge, valuable qualifications.

It’s just as racist to imagine that support for Sotomayor and support for Obama come from different places.  Both are eminently qualified individuals among eminently qualified individuals.  Both have extremely inspiring stories, and, indeed, I love the idea of promoting those high achievers who overcame adversity.  But call it what it is.  The American dream is all about celebrating ambition in the face of hard times.  Though I don’t like Obama, I love that we elected a black man.  I intensely dislike some things about Sotomayor’s jurisprudence and philosophy, but I love the idea of a woman reflecting the quickly-increasing Hispanic demographic in the States.

In other words: I’m a little bit racist, because I recognize that there’s some benefit to focusing a little bit on race.  I’m a little bit sexist too, because I’m glad Obama nominated a woman instead of a man.  As a white, non-hyphenated-American woman I realize that my position is unpopular.  But look at us.  All we’ve done is talk about race for the past year.  And we’ve spilled an enormous amount of ink pointing fingers at colleagues, shouting “racist” in a terrifyingly McCarthy-esque way.  

Let me just be the first to ask: Can’t we move on to the next topic?  All this witch hunting doesn’t prove we’re past it.  So either admit that you’re a little focused on race, or stop talking so much about it.  Either way, next topic, please.

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Still Sonia from the block?

The media exploded today with news of Obama’s Supreme Court pick, Sonia Sotomayor of the Second Circuit. I won’t direct your likely-already-informed opinion on this pick. There are just two points to highlight:

1. We knew this would be a she-nominee, and I’m glad. A lot of conservatives claim that law is an entirely objective endeavor, but even every conservative has a different take on what exactly “objective” means. Above all our Constitution rests on the principle that societal factions can only coexist if they are allowed to hustle their strengths against on another.

I appreciate that even “women’s issues” cases before the Court are about applying the law and not about what it’s like to have a uterus. But countless experiments have proven that a woman’s life experience is different from a man’s. In psych class I read a study about a male-to-female sex change patient’s dramatic experience with just how extreme are the differences between how society treats men and women (I’d find a link for you but am having a hard time sifting through all the pop-ups resulting from googling “sex change”!). If we have such a different experience I want my faction represented and asking the right questions. It’s not like women are a “minority.” I’m glad to see that the Court isn’t settling into a boys’ club.

2. I hate Sotomayor’s gun stance. As a 1L last year my hand in Heller was minimal (I translated French language weapons case law and legislation for an amicus brief), but I cut my teeth in the conservative community on the all-hands-on-deck frenzy surrounding that case. It’s near and dear to my heart — not to mention critical and right!

Sotomayor makes it perfectly clear that she opposes incorporating the Second Amendment. Forgive my intellectual laziness at getting my news from blogs and regurgitating the same here, but see Dave Kopel’s description of Sotomayor’s gun jurisprudence below:

Judge Sotomayor’s record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.”

Marie Gryphon at Point of Law discusses how the Court may treat incorporation despite antiquated Supreme Court precedent expressly rejecting incorporation:

What the [Second Circuit panel, including Sotomayor] missed, however, was the significance of the fact that Presser was decided before the development of modern incorporation doctrine, which applies most of the bill of rights to the states through the Due Process Clause of the 14th Amendment. The Presser court therefore addressed only the issue of whether the Second Amendment applies to the states directly, and did not consider the question of whether the Second Amendment is incorporated by the 14th Amendment.

A Ninth Circuit panel recently took this better view, holding that Presser did not control the question of incorporation and that the individual right to keep and bear arms does indeed apply to the states via the 14th Amendment’s Due Process Clause.

The legal argument for incorporation of the Second Amendment is pretty strong, and it’s hard not to see the 2nd Circuit panel’s opinion as deliberately ducking a question about which its members, including Sotomayor, might have had public policy misgivings. Look for some close questioning about the Second Amendment during Sotomayor’s confirmation hearings from senators close to the NRA and other gun rights groups.

3. Here are some statements, non-directive as promised:

–> NYT:

“I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit,” she said, adding that despite her accomplishments, “I am always looking over my shoulder wondering if I measure up.”

SS’s NYT quote actually makes me like her more. She strikes me as such a Scalia-esque persona with her big opinions and loud, often-unpopular statements. This description of impostor syndrome tacitly confirms that she intends to influence ideology more than law. Obvi as a Justice she’ll have the opportunity (and responsibility?) to influence both, but Sotomayor has expressed her preference for influencing policy — read, ideology — rather than law. I’m generously assuming this is a preference — if Sotomayor doesn’t recognize the difference between policy and law then her infamous Duke slip indicates a much more dangerous problem.

Judge Sotomayor’s humility makes it seem like she intends to make the most of this “empathy” charge. She knows she was appointed to apply the rule of law with a thick dollop of compassion. It’s a loose-y goose-y application of the rule of law, but compassion and rules are not necessarily mutually exclusive. So good for her for effectively acknowledging that Obama chose her for a specific reason. She would not likely have been chosen were it not for this specific attention to the relatively unique aspects of her person. I respect her attention to a responsibility to pay it forward.

–> Prof. Epstein:

…[A]ffirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.

We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.

–> Cato, per Ilya: Not a fan of affirmative action:

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.

–> Jan Crawford Greenburg’s fact-rich take: Souter’s seat was Sotomayor’s to lose.

–> SCOTUSblog’s summary of SS opinions.

–> An old piece, but see Jeffrey Rosen “indicting” Obama re Sotomayor.

–> Finally, one of my top three female role models Neomi Rao recommends some questions the nominating committee should ask:

– What matters most, the law or the result? Or put another way, when the law requires a result that you don’t like, what do you do? This might seem like an easy question. Judges interpret the law, they don’t make it. That was the view of President George W. Bush and his nominees to the high court. Mr. Obama has made it clear, however, that he thinks the law should often be about results — that the Constitution evolves to reflect modern times and statutes may be twisted to achieve justice. Any judge worth the name recognizes that the law will sometimes lead to a result of which she personally disapproves. When this happens, the judge must implement the law, not her personal preferences.

The president and Congress are elected to focus on results, to get things done, to bring about change. They can choose to implement empathetic policies that favor the weak and pull up the disadvantaged. In our constitutional system, however, the judiciary does not simply duplicate this political process. The Senate and the American people should make sure that a nominee to the Supreme Court understands the difference.

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