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Tuesday, May 26, 2009

Beldar's initial take on the Sotomayor nomination

Elections have consequences and, as he's prone to remind us, Obama won. I firmly believe that the President of the United States has the right to choose who he wants as his nominees to the Supreme Court, and that the Senate, in its advice and consent role, ought to confirm those nominees unless they're objectively unqualified. Of course that is not the rule Obama, Biden, or Clinton followed as senators; but notwithstanding their perfidy, and the fact that such perfidy is more typical of their party than of the GOP, I still think the GOP senators did the right thing when, for instance, the Senate approved President Clinton's nomination of Ruth Bader Ginsburg by a vote of 96 to 3 in 1993. And yes, of course John Roberts ought to have been confirmed as Chief Justice by at least that kind of margin, and yes the Dems who voted against him are unprincipled hyper-partisan bastards. So what else is new?

(An aside, apropos of very little: When I was puttering around my father's house during a visit to my hometown in January, I happened upon an unbound issue of the Texas Law Review — specifically, Volume 57, No. 6, dated August 1979. It was on my non-lawyer father's bookshelf — and it's certainly the only legal periodical to be found anywhere in the house — because it contains my one and only published law review article (or, more technically, my "student note" that I wrote as a second-year law student and new member of the Review). I hadn't looked at that issue, though, since some time in the early 1980s, and I had quite forgotten that one of the lead articles in that issue was entitled "Ratification of the Equal Rights Amendment: A Question of Time." The author? Ruth Bader Ginsburg, then a professor at Columbia Law School.)

In any event, there's never been any chance that President Obama would nominate a replacement for Associate Justice David Souter of whom I would thoroughly approve, or mostly approve, or even much like. Nor has there ever been a realistic chance that someone with the minimal objective qualifications could be effectively filibustered, much less defeated in an up-or-down confirmation vote, given the current composition of the Senate. As a practical matter, the most that conservative GOP senators could realistically hope for is to nudge whoever Obama nominated out onto some long and slender limbs during her confirmation hearings — possibly generating some pithy sound-bites that can legitimately become grist for the public mill when the GOP asks the American public again in 2010 and 2012, "Do you really want the Democrats to have such a free hand in putting this kind of person onto the federal bench?" And that's still a goal that's definitely worth pursuing, especially if the GOP members of the Judiciary Committee can treat their own rampant and chronic cases of "senatoritis" (that is, making speeches rather than actually asking pithy and comprehensible questions which will genuinely probe the nominee's beliefs and judicial temperament).

Based upon what I know of her so far, in U.S. Circuit Judge Sonya Sotomayor, Obama seems to have passed the "minimum objective qualifications" bar. This is no surprise, no more than the fact that this is a blatantly racist and sexist selection made to appease the Democratic Party's loathsome identity politics. However, Karl Rove made a good point on one of the Sunday talking head shows this weekend when he pointed out that the Obama Administration can't possibly have vetted her (or any of the other finalists) nearly as thoroughly as the Bush-43 Administration had vetted Roberts and Alito, so I reserve the right to change my opinion if some significant disqualifying facts pop out now that she's under everyone's microscope.

Beyond that, my main reaction to the Sotomayor nomination is actually a sigh of relief. This is guesswork on my part, mind you. But from what I know of them, my strong gut hunch is that either of the other two purported "finalists" whose names had been floated in the press — newly confirmed U.S. Solicitor General Elena Kagan or U.S. Circuit Judge Diane Wood of the Seventh Circuit — had significantly greater potential to become extremely effective in influencing Mr. Justice Anthony "Sweet Mystery of Life" Kennedy. (Indeed, the potential nominee I feared the most, and for that very reason, was Obama buddy Cass Sunstein, who I think would have absolutely owned Anthony Kennedy within his first six months on the Court.) Had Obama chosen someone likely to become particularly influential with Justice Kennedy, that could have made a significant, and oftentimes outcome-determinative, difference on some substantial portion of the very close decisions on the Court over the next several years, even if we assume that the new junior-most Justice will mostly vote as we expect Justice Souter would have done. I don't think Justice Souter has been especially effective in influencing Justice Kennedy, however, and I don't have any reason to believe that Judge Sotomayor, if confirmed to the SCOTUS, will be either.

Posted by Beldar at 07:15 PM in Congress, Law (2009), Obama, Politics (2009), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Beldar's initial take on the Sotomayor nomination and sent a trackback ping are listed here:


(1) Rhodium Heart made the following comment | May 26, 2009 8:44:37 PM | Permalink

Interesting analysis. I am of two minds. Mind #1 says, "It could have been so-o-o-o-o much worse." Mind #2: "Roman Hruska has finally been vindicated!"

(2) Mike Myers made the following comment | May 26, 2009 9:29:04 PM | Permalink

Let's be fair to Justice Sotomayor; while she may be who Roman Hruska was referring to, she's no G. Harrold Carswell. She's a Latina feminist--not a racist.

(3) Gregory Koster made the following comment | May 27, 2009 3:24:33 AM | Permalink

Dear Mr. Dyer: OK, you've teased us. Now tell us why your gut hunch is that Sotomayor would be less effective at leading Kennedy around by the nose than the other two. I agree with you, seeing Sotomayor as a shrill harridan who would repel Kennedy's tender sensibilities. Do you have anything beyond that?

Sincerely yours,
Gregory Koster

(4) stan made the following comment | May 27, 2009 8:47:34 AM | Permalink

I heard Cass Sunstein speak at a business conferenceoke last year about his new book, "Nudge". I was very unimpressed. I was interested in reading the book when I first heard about it. After listening to him fail in his effort to explain the premise coherently, I lost all interest in reading the book.

If Kennedy would be swayed by Sunstein, he's even more unmoored and lost at sea than I thought.

(5) A.Reader made the following comment | May 27, 2009 11:07:14 AM | Permalink

Your RSS feed appears to be broken: I'm getting a "404 Not Found" error from http://feeds.feedburner.com/Beldarblog and http://www.beldar.org/beldarblog/index.rdf simply gets mapped into the feedburner address.

(6) Beldar made the following comment | May 27, 2009 11:22:55 AM | Permalink

Stan (#4): Justice Kennedy was a con law prof from 1965-1987, but at a law school that's not generally ranked very high in the national surveys and that continually struggles for academic recognition and respect. Sunstein's also a con law prof, but in particular, he's the most-cited con law prof (by other law profs writing in law journals) by a huge margin -- 6180 citations at age 53, as compared to runner-up Larry Tribe with 3520 at age 66. That's a stunning datum, and I think it's a relevant one. Sunstein, who's now at Harvard after a long stay at Chicago, does have wide-ranging interests, and he's considered to be great at synthesis of cross-disciplinary concepts into the law (which, as a curmudgeon, I translate as "random and mushy thinking, untethered to actual law, but which sounds very neat and creative"). I wouldn't necessarily expect him to be as persuasive as a public speaker on matters such as "how public and private organizations can help people make better choices in their daily lives" (the subject of "Nudge," as I understand it), for instance, as he is in writing or private communications on his core specialties. But he clearly knows how to work an audience of academics seeking respect for themselves.

Kagan was, until she became solicitor general, a respected and successful Ivy League law school dean who, in particular, was noted for having charmed and attracted conservative law profs at Harvard, and she's also younger and in better health than Sotomayor. I think she would have been the most dangerous pick, from a conservative standpoint, of the three "favorites" who'd been under discussion precisely because she would have been the most influential upon Justice Kennedy, which is to say, the most effective as a force for driving liberal outcomes in 5/4 cases. Judge Wood has gotten along well enough for the most part with the conservatives on the Seventh Circuit, but she worried me less than Kagan.

Mr. Koster (#3), I probably wouldn't have chosen "shrill harridan" as my own phrasing, but you're pretty close to intuiting my guesswork about Sotomayor. I suppose I'd describe her as a conventional and consistent leftie on the bench, someone not likely to be terribly subtle or creative, someone whose approval doesn't necessarily convey an aura of academic status, and someone unlikely to be any more persuasive than Justices Stevens, Ginsburg, or Breyer already are, or than Souter has been.

(7) A.W. made the following comment | May 27, 2009 11:59:07 AM | Permalink

Soto's now infamous comment that a latina woman would make better decisions than a white male, means she is a sexist racist. maybe we could do worse, but obama could do better.

maybe we won't win, but if we go down, we should do so as every Roman mother wished her son would: with our wounds in the front.

a sexist and racist has no place on this court.

(8) ketchikan made the following comment | May 27, 2009 12:09:14 PM | Permalink

The difference between the Republicans and Democrats when confirming someone apprears to be striking. Think of the treatment Miquel Estrada got when Bush nominated him for a seat on the federal bench. After 28 months and seven fillibusters later he withdrew his name. Bork and Thomas were treated horribly. Has the Right ever behaved so badly?

Is Sotomeyer really the "first Hispanic"? (saw a blurb saying it isn't so) Whenever the Left nominates a black it will be hailed as the "first black" nominee. Not good for the country that we have divided ourselves as such.

(9) John made the following comment | May 27, 2009 12:35:53 PM | Permalink


I agree with you that Judge Sonya Sotomayor is the least likely of the favorites to be able to persuade Justice Kennedy to support the liberal side. However, from what I have read about her, I think she might even be better than this, in that her purported interactions with those she served with seem to indicate that she can be off-putting. So her presense on the Court will I think have a slight impact by pushing Kennedy more rightward than otherwise. That said, Republican Senators should question her positions closely for she has taken positions or made statements that appear very disturbing. Who knows, it might reveal something that will disqualify her even to some democrats.

(10) ben acton made the following comment | May 27, 2009 7:28:14 PM | Permalink

May we ask her to list her worst mistakes in order of magnitude?

(11) PC14 made the following comment | May 27, 2009 7:43:16 PM | Permalink

From CNN Political Analyst Gloria Borger:

He was looking for someone with the ability to win over Justice Anthony Kennedy, the crucial swing vote.

"[Obama] was very struck, when he met with her, about how thoughtful she was as a judge," says the source. "He believed she had a precise approach to cases that would be effective in winning over Kennedy when possible."

(12) A.W. made the following comment | May 27, 2009 9:01:14 PM | Permalink

Btw, i have already drafted an ethics complaint against her. A judge is supposed to disqualify him or herself whenever the judge's impartiality can be reasonably questioned. Given what she said about latina women and white males, i would say her impartiality in the affirmative action case might be reasonably questioned.

(13) Thomas made the following comment | May 27, 2009 10:16:09 PM | Permalink

Okay, now that you have whined at extreme length about the nominee - grasping at very flimsy straws of "evidence" to claim that Ms. Sotomayor is unqualified to sit on the bench, could you give me a few actual legitimate reasons why she is somehow less qualified than, say Chief Justice Roberts or Justice Thomas?

No...I mean actual legitimate reasons...


Didn't think so.

Enjoy the next seven and a half years...

(14) Beldar made the following comment | May 27, 2009 10:18:08 PM | Permalink

Ketchikan (#8), the first black on the SCOTUS was LBJ nominee Thurgood Marshall, but you're certainly correct that Justice Thomas has been regarded as "insufficiently black" by many dazed and confused lefties. Justice Benjamin N. Cardozo, who served on the Court from 1932-1938 after a long and distinguished term on New York State's highest appellate court, was from a family of Sephardi Jews whose ancestors fled to England from Portugal, but the Federal Judicial Center's website lists his "race or ethnicity" as "white." In any event, I'm not aware of him ever claiming that his family's Portuguese roots made him "wiser" than anyone else, even though he was an exceptional jurist and thinker whose opinions are still studied widely today.

(15) Beldar made the following comment | May 27, 2009 10:29:43 PM | Permalink

Thomas (#13), if you're going to comment here, you ought to read what I've written first. I wrote that "in U.S. Circuit Judge Sonya Sotomayor, Obama seems to have passed the 'minimum objective qualifications' bar," and I have not argued that she's unqualified. Unless some new information is uncovered, I don't expect to make that argument. Nor has that term been used by any commenter here; such doubts as commenters have expressed have gone to her temperament and objectivity, not her qualifications. And nothing I've written in this post, nor any of the comments, is whining.

Opposing views, civilly presented, are very welcome here. But purely partisan mockery isn't, and I have a low tolerance for trolls. Mind your manners, or go elsewhere, please.

(16) Legal Aid made the following comment | May 28, 2009 1:31:45 AM | Permalink

I just hope these nominees would deliver. I hope their performance is as memorable but less controversial than their nomination.

(17) xinhua made the following comment | May 28, 2009 8:41:43 AM | Permalink

Beldar calls the Sotomayor pick a "blatantly racist and sexist selection." Any pick that wasn't a white male would have been called racist and/or sexist. As we know, the only people qualified to sit on the court are white men.

(18) Thomas made the following comment | May 28, 2009 8:54:16 AM | Permalink

To quote from your column...

"...this is a blatantly racist and sexist selection made to appease the Democratic Party's loathsome identity politics."

Less the accuser be accused of "purely partisan Mockery..." this sounds more than a tad partisan...

(19) Beldar made the following comment | May 28, 2009 9:11:26 AM | Permalink

Xinhua (#17) and Thomas (#18): It's not just the end result, but the process that counts, and in this process, no one but women were considered; men were pre-excluded from consideration. This is not subject to reasonable debate; every single name floated by the Obama Administration was of a woman. And the woman candidate from a racial minority group was ultimately preferred over white women; Obama has singled out her race in describing her background experiences that he has lauded as making her especially qualified, and only a fool or a liar would deny that she's benefited from an overt racial preference.

The Obama Administration is making choices — and that literally means "discriminating" — on the basis of sex and race. As Chief Justice Roberts wrote recently, the way to end unconstitutional discrimination on the basis of race (and he could well have said sex, too) is to stop discriminating on the basis of race (or sex). That the beneficiary of the discrimination this time was a member of groups that have themselves been the subject of adverse discrimination in history doesn't change or justify that now, when there's absolutely no reason to think that the Obama Administration would have discriminated against members of those groups but for this deliberate and conscious racial and sexual preference.

If the process is genuinely non-discriminatory, then women and members of racial minority groups will do just fine on their own, thank you. As it is, Judge, perhaps Justice, Sotomayor will always suffer from being correctly deemed "the 'affirmative action' choice" and the victim of the soft bigotry of low expectations. These sorts of preferences actually stigmatize those they purport to help, and postpone further the achievement of the day when all Americans treat each other fairly as individuals based on the content of their respective characters, rather than sorting each other on the basis of identity groups. This is a fundamental tenet of classical liberalism, now embraced by conservatives and long abandoned by modern liberals or so-called "progressives."

Xinhua, your comment is rude and offensive, wholly beyond the bounds of permissible snark because it is totally contrary to everything I've ever written or said or done during my own life. Your comments are no longer welcome here; begone, troll.

Thomas, I respectfully suggest that you learn to reason and use language more carefully if you wish to continue to comment on bandwidth here that I pay for. My comment regarding the Democratic Party's identity politics, while certainly partisan, is also as serious as a heart attack and very definitely substantive, whether you agree or disagree. If you have a substantive and partisan counterargument, feel free to make it, so long as you remain civil in doing so. But don't unjustly accuse me of whining, sir, and expect to remain welcome here.

(20) Leif made the following comment | May 28, 2009 11:29:48 AM | Permalink

Beldar, Sunstein's objective work -- unlike the "cross-disciplinary" work of so many who just want to remake the law into another social science or branch of politics -- is path-breaking and fascinating. I don't think that "behavioral economics" is the be all-end all slayer of economic analysis of law that many do, but it's a vital contribution to the field. So are Sunstein's analyses, based partly on psychology and sociology, as to how voters and jurors process and act on information. My problem is generally with his conclusions, which are uniformly statist.

(21) Ketchikan made the following comment | May 29, 2009 1:49:16 PM | Permalink

Beldar, Thanks for reminding me about Justice Marshall. Until the last few years the race of the Justices didn't register with me, (neither did their sex). Yes, I was aware but not consciously so. The Supreme Court Justices were just that, nine people who served our country in a very important way.

(22) Blue made the following comment | May 29, 2009 2:20:20 PM | Permalink

My take on Sotomayor is that no other potential nominee will be any better, so there's no real benefit in trying to shoot her down. Now, using her to draw blood on Democrat identity politics, that's another matter.

As an aside, while I certainly didn't like her "wise Latina" crack, the most troubling thing I've read about her is that she appears to be a Puerto Rican nationalist--her thesis at Princeton argued in favor of independence for the island to preserve its unique Spanish culture. I'd sure like to see someone pin her down on that and ask her how she squares being appointed to the Supreme Court of the United States with support for the dissolution of a component part of the country.

(23) nk made the following comment | May 30, 2009 9:00:55 AM | Permalink

Beldar is right that only women were considered and, from my personal point of view, I wish Obama had picked Governor Jennifer Granholm. If I am going to be shouted down by a liberal lady judge during argument, at least she should be one that's not painful to look at. (Ducks and runs away.)

(24) hunter made the following comment | May 30, 2009 1:28:39 PM | Permalink

The USSC has had racists on its bench before.
She is just a new face for an old intolerance.
It seems, however, that her self-aggrandizement regarding her qualifications are not received well in the legal community, sense something like 60% of her rulings are tossed out later.
Yet again we see that what Obama means by 'hope and change' is that he is simply hoping to get away with using Chicago ward heeler tactics as a national governing style. Nominating this non-judicious racist woman is not designed to improve justice in America, or even maintain it. Her nomination is designed to move Hispanic votes father to the (d) column.
The fact that democrats imposed racist tactics to deny Republican Hispanic judges a seat only shows how ward heeler hack tactics have nothing to do with a better America. The goal is, as always, a stronger democratic party.

(25) nk made the following comment | May 30, 2009 1:49:33 PM | Permalink

My live-in family doctor tells me that juvenile Type I diabetics are very disciplined. They do not go into hypoglycemic psychoses. Let's see if that's true with Judge Sotomayor at the confirmation hearing. (And this time, I am neither ducking nor running away.)

(26) Michael Brophy made the following comment | May 31, 2009 11:10:01 AM | Permalink

In discussing an event with the Vietnam veteran who had discovered the mass graves in Hue, he noticed ground bubbling during the rainy season, he told me that soldiers who had been raised in Communist orphanages would do anything for the state. Here he was speculating that the pictures of a woman and children carried on a Communist soldier and very disturbing to the man who killed him may have been issued to him to carry in his pocket as psyops in the event he was killed. Another way to look at the background of Sotomayor is that she grew up a ward of the state. Her mother may have worked 2 jobs but if the government hadn't provided shelter she wouldn't have had it, etc. Thus she may favor the government. I think this is suggested in the case where a man got a judgment against police, he was trying to get to a phone to notify someone that his commercial truck was in the roadway and got into a physical argument with what turned out to be off duty police who arrested him, but she successfully overturned the case in appeal influencing 2 other judges in the process. One of the speculations about what Obama might need in a Justice was someone who didn't challenge presidential prerogatives; maybe he sees that as well. A sidebar to this is that her first education was provided, probably including in a financial sense, by a Catholic school and she may give its views deference as well.

(27) nk made the following comment | May 31, 2009 5:31:04 PM | Permalink

Six Catholics on the Court. Might as well invite the Pope to move into the White House. I'm kidding, I'm kidding! But this was kind of a big deal when Roberts and Alito were up.

(28) LLB made the following comment | Jun 4, 2009 8:10:47 PM | Permalink

Surely, all eyes would be on Sotomayor.

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