Sunday, July 19, 2009

Sotomayor's Confirmation May Not Be Total Disaster After All

A nice bit of perspective here from the Milwaukee Wisconsin Journal Sentinel...

The Week Judicial Liberalism Gave Up by Patrick McIlheran

Sonia Sotomayor, all concede, will be confirmed. Since Democrats hold an unassailable majority in the Senate, the appointee of a popular Democratic president would ascend to the Supreme Court even if no Republicans were seized by senatorial courtesy or deference to the Latino vote. She will be confirmed.

So who cares that Sotomayor's sudden conversion away from any previous "progressive" views is so transparent? Republicans suspect she's not really past all that wise-Latina stuff, but does that matter?

Yes. Quite a bit, actually.

It's worth pointing out, first, just how noticeable has been Sotomayor's switch. Take the infamous matter of her 2001 speech in which she argued against the observation that a wise woman and a wise man would reach the same conclusion. Sotomayor argued not merely that ethnic and sex differences shape a judge's perspective, an uncontroversial view. She argued that they actually make some judges inherently superior: "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," she said.

This week, she said that was "a rhetorical flourish that fell flat." Yet it was a rhetorical flourish she'd used at least six times over the course of a decade, suggesting it was her deliberate and considered view. Why shouldn't it be? Such notions that white maleness is a handicap apparently are found regularly in legal scholarship. Her disavowal of the idea in Senate hearings drew outright scorn from some liberal legal scholars.

So, too, on other issues. Sotomayor kept her head down on abortion, arousing complaints from abortion-rights groups. Law professors complained to journalists that empathy "went out the window," that they were "completely disgusted" by Sotomayor giving answers indistinguishable from what John Roberts and Samuel Alito might have said.

The interesting question is why she did this. She does not have to please Republicans. She could have answered them by standing and singing "The Internationale," and she'd still end up on the court.

Yet she went out of her way to spurn President Barack Obama's view about empathy: "Judges can't rely on what's in their heart," she said. She's disavowed that moral superiority is granted by being part of a minority. "I do not believe that foreign law should be used to determine the result under constitutional law or American law," she said Thursday, throwing overboard the progressive dream of correcting our bad habits in the court of world opinion. Asked whether the Constitution is a living, breathing document, she replied it is "immutable" but for amendments. "It doesn't live other than to be timeless," she said.

Antonin Scalia must have wept at the beauty of this statement.

Why such a thorough repudiation of all that progressives feel? Why must Sotomayor be portrayed as identical to a George W. Bush appointee before Democrats can vote for her?

Because, apparently, that's what Democrats suspect the public wants. On some level, the president and his congressional allies believe the public would not stand for a justice who thinks the Constitution must breathe modern air, that world opinion must inform our law, that abortion is a constitutional right if not a sacrament and that who you are should matter to how the law treats you.

The Democrats might be right. The Rasmussen poll Wednesday said that while 90% of respondents figured Sotomayor is going to be confirmed, only 37% favored it, while 43% were against. And 83% of them said the legal system "should apply the law equally to all Americans rather than using the law to help those who have less power and influence."

So much for the empathy gambit.

From this, two possible outcomes emerge. One, Sotomayor is confirmed, and it turns out her conversion is real. Wise Latina? Nah, she's an umpire in the Roberts mold. Result: Conservatives win.

Two, she's faking. She's confirmed and becomes a reliable liberal vote to mutate the Constitution into what she's sure the writers would have made it had they been as smart as modern liberals. Result: No change from the man she replaces, David Souter, and Obama loses more credibility with independent voters.

Either way, what's become clear is that the week that was supposed to be the humiliating rout of old white guys in the Senate has turned into the surrender of judicial liberalism. That has become the philosophy no potential justice can admit to, even when her president owns the Senate. Whoever in the administration coached Sotomayor knows this: A conservative Supreme Court is not at odds with America. It is its reflection.

via ChronWatch


Anonymous said...

Really silly to claim people are not influenced by their gender or background as the writer clearly is-extremist of the right.. No law is neutral-it is a myth.

XLBRL said...

Well duh... of course everyone is influenced by their gender and background. The question is whether you allow those influences to rule your judgment, or whether you can see through your own prejudices to get to the intention of the law.

A good judge does the latter. An activist (or bad) judge the former.

Activist judges are bad no matter what they stand for. Whether they are right or left wing is not the point; the point is that these judges in their arrogance believe that they are smarter than the law.

That is tyranny.

Burr Deming said...

I see a problem with Judge Sotomayor's nomination that would put Democrats on the spot. But conservative Republicans cannot bring themselves to raise the issue.

Disaster Preparation said...

Interesting read. Thanks for posting.