Dahlia Lithwick argues that the Republicans are really shooting themselves in the foot with how they’re handling the Sotomayor confirmation hearings. They’re hammering away on her “Wise Latina” comment — a single badly worded sentence from a 2001 speech — instead of her 10 year long record on on the Second Circuit court, where she’s heard 3,000 cases and written 380 opinions. Although the Republicans have agreed that she will almost certainly be confirmed and this is their version of going easy on her, they’re making themselves look like assholes.

Posted: Friday July 17, 2009 by Alesh Houdek · Categories: Politics · Comment feed: RSS, atom

 

Comment

  1. Alex    Jul 17, 11:16 AM #  

    Today a poll showed that public opinion of Sotomayor hasn’t changed after the hearings. Whoever hate her still hates her and viceversa. So Republicans were just going through the motions, and what looks like an asshole to you and me it looks like principled talk to their base.

    I thought Dahlia’s other point was very interesting; that the Democrats wasted an opportunity to elaborate a liberal judicial theory. We know what conservative judicial theory is —constructionism, opposition to “activism”— but we don’t know what a modern liberal view of the judiciary should be and its role in advancing society forward. (And I say modern because it was very clear during the Warren Court and even the Burger Court).



  2. alesh    Jul 17, 12:03 PM #  

    True. And it’s funny how everyone is raving about Franken. Dude made a splash.

    I wonder how you’d elaborate a liberal judicial theory without turning off lots of independents and even some democrats tho. Wanna take a stab at it?



  3. Alex    Jul 17, 06:49 PM #  

    Franken is very cerebral, underneath all the silly “Limbaugh-big-fat-idiot” comedy stuff.

    As to liberal judicial role, just follow the way paved by the WC, superficially:

    1) The obvious one is constitutional perfectionism: the Constitution is a guiding document, not a sacred cow. It’s vital to interpret it in the context of advancing our society. Few would argue now that civil rights, for example, don’t have a rightful place under the constitution, but every one of those interpretations was met with heated resistance.

    2) Judicial independence, which was actually a tenet of the republic for most of its existence. The idea of judges as wise men with command of the issues and the restraint that comes with an intellectual education, who would be better at making though and at times unpopular decisions was the prevailing view. The balance would be found in —cover your ears— diversity of opinion which is precisely what conservatives are excoriating.

    Things like mandatory sentencing are a very new and populist phenomena. The most fanatical liberal or conservative sounds foolish claiming a much better knowledge of the legal process than Scalia or Ginsburg. Yet we have 2-year legislators who pretend to know better and overeach the legislative boundaries pushing their agenda. Then when it’s rejected, which is exactly how the process was designed to work, they complain about “activism”. The newest conservative refrain is Robert’s umpire analogy but they do not want to respect the umpire’s decision.

    3) Legal realism and its close cousin, legal instrumentalism: the idea that the legal process is more than the blind application of an abstract collection of immutable rules, recognizing the application of laws has a real impact on society as a whole, not just on individuals, and that law can be a tool for advancement of society.

    4) Relatively new idea, not very popular but it is a good illustration of why the current judiciary is ill-suited for a modern world: we need to end the idea of American exceptionalism in the judiciary as well. There’s no reason not to look at foreign law and foreign judiciary for solutions. Nobody would argue we shouldn’t look at scientific advances, for example, because they were discovered in a foreign country. So why can’t law, an intellectual enterprise, benefit from similar open mindness?

    Are these a turn off to independents and democrats? Maybe but consider that we are at the best possible moment as a country, in the ebb and flow between liberalism and conservatism, to push these theories to the test again. The SC leans center-right and still has not been very successful in rolling back the advances of the Warren and Burger courts. And the real state of the judiciary is one of conservative moderation. (I’m not sure how to add links to comments, but it should be easy to Google all this.) Most judges on circuit and appeals courts have been nominated by Republican presidents. A Sotomayor or two would not have the catastrophic impact Republicans are wailing about.

    Just so we know what we are dealing with here, what conservatives want is conservative activism, judges who would roll back existing law to before the progressive policies of the New Deal. Most of the specific judicial actions needed for such a rollback would be even less popular than liberal activism, which is why they don’t really resonate beyond the base and why they mask it under platitudes like “originalism” which sounds great to the part of the American public that has been conditioned to place a great deal of value on history and patriotism, and why they aim their major efforts against narrow-target issues like affirmative action.



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