Supreme Court term could be interesting

I doubt that the presence of Sonia Sotomayor will make much difference in the way the Supremes decide things this term -- although news reports say she was active in questioning on the first day the court heard cases yesterday. Kennedy will continue to be the justice to whom lawyers direct their arguments and he will likely continue to side with the "liberal" bloc sometimes and the "conservative" bloc more often.

As this Register editorial explains in truncated form, however, it should be an intersting term. The Hillary Movie case, with the potential to disassemble a good deal of the restrictions on the practice of democracy known as "campaign finance reform," has been argued. There's a cross on federal land in the Mojave Desert likely to further confuse church-state jurisprudence. There will be a couple of terrorism-related cases, one involving designating a "humanitarian" organiuzation as providing "material support" to a terrorist organization. And perhaps most interesting, Maloney v. Chicago, which challenges Chicago's strict gun laws in the wake of Heller, which pronounced the right to bear arms an individual, not a collective, militia-conditioned right. Heller applied to the District of Columbia, a federal enclave. The question is whether that right will be "incoporated," as most of the Bill of Rights have been by the courts, to apply to states and municipalities. Don't look to me for predictions. Not yet. Maybe I'll get foolish as I read reports on oral arguments.

Sotomayor seems pretty inevitable

It's hard to tell whether she has actually never thought too much beyond platitudes on the kind of controversial issues the Supreme Court is likely to address -- abortion, property rights, the Second Amendment, incorporation, eminent domain -- or whether acting that way seemed like the best strategy to assure a comfortable Senate approval. But the Sotomayor hearings were remarkably lacking in drama or information. The only things that excited me was her approval of state protectionism when it comes to interstate wine sales, one of the issues on which the current Supremes reversed her. Here's the Register's editorial after the first day, along with a few subsequent blog posts, here, here and here. She probably won't be a disaster, but there's no evidence that she is intellectually distinguished or even especially curious about constitutional issues.

Sonia and the Senate play the game

I had to watch a good deal of the Sotomayor confirmation process today to write tomorrow's Register editorial, and was struck by the fact that this elaborate charade is even more phony than Supreme Court approval hearings usually are. Everybody knows that she benefited from a double standard on the "wise Latina woman" comment -- culturally-approved minorities can almost do no wrong -- and everybody knows she will be confirmed. She's replacing a "liberal" so she won't shift the balance of the court.

It's amazing to me that some conservative forces are so bent on putting a a full-court press of opposition. Strikes me as a waste of resources. Does "the base" really demand a campaign claiming she's the most radical nominee ever? She is probably slightly more radical than her judicial record would suggest, and she hardly strikes one as intellectually distinguished, but she may be the least ideologically-committed of those Obama considered seriously, and because of her background as a prosecutor will probably be fairly"conservative' (which means awful from my perspective) in criminal justice matters. The GOP senators were more restrained, as is politically wise. Jon Kyl and Lindsey Graham pressed her fairly effectively on the speeches while paying enough respect so as not to alienate too many Hispanics . The other GOP senators, considering that this is the most significant TV time GOP figures will get this year, were generally pathetic.

They could have made a fairly serious case for constitutional judging, but presenting the notion that the rule of law in our system produces predictable results untainted by ethnic or ideological predilecetions (which are far more significant than ethnic is simply absurd in the face of all the 5-4 decisions the court routinely hands down. A significant educational moment wasted. Maybe tomorrow will be better, but I doubt it.

Sotomayor more "ethnic" than advertised

I posted this at the Register's Orange Punch blog today, and thought it might be of interest here as well:

The White House has attempted to finesse Sonia Sotormayor’s 32 words about a “wise Latina woman” etc. etc. by saying she would probably have chosen different words if she had a chance at a redo. But the release by the White House of a collection of her speeches and opinions (and her 173-page completed questionnaire) suggests that this wasn’t a case of careless use of words one time, but part of a fairly standard stump speech that she used a number of times between 1994 and 2001 and beyond. John Dickinson at Slate, hardly a right-wing crazy, thinks the White House may have misfired by suggesting that Republicans didn’t complain about a similar phrase (without the “Latina”) in a 1994 speech when she was up for the 2nd Circuit job, so why are they whining now? But the fact that she seems to have had that opinion for many years and expressed it in public may be a bigger problem in the confirmation hearings.

Looking at the speeches also suggests a keen awareness on Judge Sotormayor’s part of her ethnic background and how it sometimes made her feel like a “stranger in a strange land” (beginning at Princeton in the 1980s, which wouldn’t be a surprise) even as she was rising to the top of her profession. “The Latina in me is an ember that will burn forever,” she told Hofstra students in 1996. Her awareness seems coupled with a determination to be a good role model and urge other Hispanics to apply themselves seriously to advancement.

In my view, none of this makes her a “racist” as Rush Limbaugh wants to insist, nor does it disqualify her for confirmation. Her record in discrimination cases also suggests that she wasn’t automatically sympathetic to claims of discrimination. Still, I regret (though I think I understand) the gender/ethnic tribalism in which she chose to participate.

I still think the talk-radio mob — recognizing that the medium thrives on controversy and outrage even if it has to be self-manufactured — made a big mistake by attacking her so relentlessly. She’s going to be confirmed anyway and she won’t affect the balance on the court (she might even be more conservative than Souter on some criminal-justice issues, arising from her experience as a prosecutor). While acquiescing in her inevitability, Senate Republicans could have presented themselves as thoughtful critics of her approach to judging without emphasizing her gender or ethnic background. But it’s probably too late for that now.

Share this post:

Sotomayor to the left but not the Apocalypse

We've just begun the process of going through Sonia Sotomayor's record on the bench to see what's up. As this Register editorial suggests, at this point it's pretty clear that she's not exactly a rightist in the Sam Alito mode but she doesn't seem to be a raving radical -- or a racist, despite a few unguarded remarks and despite the conservative attack machine's desires. I suppose we're in for a contentious confirmation process. Both the official right and the official left have an interest in justifying the millions they've raised. But I'm a little sick of the half-truths and distortions from both sides already.