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Tuesday, May 26, 2009

Soto's Voce

I can't comment yet on Sonia Sotomayor's judicial record, but I have found the debate about her interesting, especially since it began long before she was chosen. Less from the wingnuts--like James Inhoffe (R-OK)--than within the progressive camp. Glenn Greenwald at Salon has enthused about her, in part I think because TNR's Jeffery Rosen wrote a column, based on anonymous sourcing, expressing reservations about her intellect and temperament. Greenwald tends to assume that anything that comes out of TNR is malicious "centrism", and he was quick to assign corrupt intent to Rosen, suggesting family vendettas and ideological betrayal.

As much as I appreciate Greenwald's valiance and doggedness in the fight for civil liberties under GWB, he drifts in Cheney-like heretic hunter mode whenever TNR crosses his path. He once attacked TNR retrospectively for having endorsed Joe Lieberman in the 2004 presidential primaries, without recognizing that they had been so divided that they had published FIVE separate endorsements in a single issue, none of which represented the unified view of a magazine devoted to diverse center-left dialogue. Similarly, here he missed the point of Rosen's piece, which cited liberal law clerks who feared than Sotomayor wouldn't be enough of a liberal lion, an anti-Scalia. Such criticism came today from Jonathan Turley, whose civil libertarian bona fides aren't in much doubt. Furthermore, Greenwald didn't bother looking to see that Rosen had also endorsed Sotomayor's nomination, arguing that confirming her wasn't a close call.

For my part, I don't much want a lefty Antonin. I prefer my justices restrained, right or left. And I've always thought that Nino's intellectual heft is overrated. His talent is less as an interpreter of the law--his "originalism" has always been a hypocritical and poorly concealed cover for right-wing preference maximizing--than as a red meat rhetorician. The left certainly needs that, just not necessarily on the court. I don't cotton much to a court that tries to lead social revolution (let that come from the political branches), but I do want a court that preserves constitutional liberties and resists the drift of right wing extremism. As Rosen himself has noted in his latest book, Scalia's caustic celebrity hasn't made him a very effective justice. Rosen prefers pragmatists of jovial temperament, although he undermines his case there by using CJ Roberts as a positive example. Sure, he cleans up nice for the cocktail parties, but at the end of the day, he's just another partisan flack. I'd be shocked if history remembers him as anything other than a reliable vote for the most privileged (and corrupt) voices of his day.

We might also note that it is hard to predict what justices will become liberal lions: Warren, Brennan, and Black were all surprises based on their backgrounds, and Frankfurter, Douglas, and Thurgood Marshall were all disappointments, if for very different reasons. Sotomayor is clearly qualified. At this point, all other speculation is crystal ball gazing.


At 6:45 PM, Blogger Number Three said...

It's too early to judge Chief Justice Roberts (and Justice Alito). He was appointed at a particular point in history, with a particular set of issues in mind--but he will serve 30 years or more (Alito likely a little less). If the political and legal landscape shifts, he might be a bit like Felix Frankfurter--appointed to uphold the New Deal, then faced with a civil libertarian agenda that he did not support. I wouldn't be surprised that in 15 years the legal agenda will present issues very different from the ones that Bush's appointees were chosen for.

Now, in 20 years, TMcD might still be right. I am reserving judgment. We are still, somehow, fighting out the battles of the 1960s. But in 2020, I am guessing that we won't be doing that . . .

I think that Sotomayor puts the GOP in an awful spot. Attacking her as an affirmative action pick poisons the well with Latino voters (and women!). But their base wants a fight, so a fight they will get. As though the GOP needs to do better among white men. NOT! This is one of those things that makes me think Obama is a super genius.

Query: Is Obama the most super genius ever to be elected president, or is he merely tied with Thomas Jefferson?

At 1:28 AM, Blogger tenaciousmcd said...

SS was a great pick, but it didn't take a "supergenius." She was so far the frontrunner that she got a pre-nom attack wave. Hell, I've got no foresight, but I've been telling my students for months that she'd be the first pick. And I didn't know anything about her other than (a) Latina, (b) moderate liberal, and (c) Latina.

I'd be willing to bet that CJ JR looks no different or better in 20. Guys like that don't change much: did the four horsemen? I know the beltway cw is all about how great that dude is. To me, outside the loop, he looks like the kind of guy who would crawl across a desert of dead Ethiopians to lick Mussolini's boots. If I'm wrong in 20 I'll write him an apology. From the political prison where he has thrown me for writing this blog.

At 7:13 AM, Blogger Number Three said...

The four horsemen are actually an interesting analogy. When appointed, there was no New Deal. So their reaction to the New Deal was a reaction to a new stimuli. Memory fails, but at least one horseman was a Democratic (Wilson) appointee (McReynolds--IIRC). When Wilson nominated McReynolds, he wasn't thinking about progressive economic policies. I'm not sure that's a 'change.' But it's the unexpected.

Same with W and his nominees. There were a lot of issues on the agenda at the time--I do remember that--but in 20 years, there will be new stimuli. And it's hard to know how folks will react to new stimuli. That has nothing to do with whether one is personable or charming.

This isn't just true of judges, btw. I'm willing to bet that both of us have become more liberal and more dovish in the last 8 years (even though we started in different places--I've probably always been to your left and more dovish--we've moved in a similar direction). Why? Well, there were all these things that happened in that time. We reacted to those things.

To the extent the issue agenda is different in 20 years, it is very difficult to say where the Court and its members will be.

And I have no idea what Mussolini has to do with anything. Is that some kind of Jonah Goldberg moment?

At 1:26 PM, Blogger tenaciousmcd said...

McReynolds (our only fellow Vandy-ite to have made the Court!) is an interesting case, but I don't think he supports your argument.

Yes, he was a Dem, but in an era when the partisan divisions over economics had yet to harden into ideology--something that starts to happen in the 1920s. At the start of the century, each party had a laissez-faire and a progressive wing. McR was a l-f Dem (much like Steven Field had been a generation earlier) whom Wilson made AG when his first choice was deemed too liberal, and then he got kicked upstairs to the SCt b/c he was such a racist, anti-Semite, and all-around asshole that nobody could stand working with him. It's not clear that WW had ANY ideological purpose in appointing him to the court--in an era when that was not the rule anyway. At best he was a patronage pick for southern Dems. So I don't see much evidence of ideological "evolution" there, at least not in today's sense when the ideological boundaries b/w the parties are much more rigid, and when strict right-wing fealty is the primary qualifier for a GOP judge. "No more Souters!" as they say.

So back to Roberts, whom I see as a blind worshiper of power and authority. Are there any circumstances in which you can imagine the CJ saying "No" to a GOP Pres on lawless behavior? We've already had several pretty good tests, and I think we know he's on board as an Art. II absolutist, at least if his boys are in the saddle. And we also know he's a moral cretin with Orwellian tendencies: the Jefferson County, KY, Schools case proved that. He certainly hates Congress and nurses a profound sense of victimization, believing that America conspires against the rich, the male, the wealthy, and the white. I don't see how that makes the charge equivalent to Goldberg's silliness, which is most akin to racists like Limbaugh and Tancredo running around accusing SS of "racism." Their perverse and ironic use of the term does not invalidate its more technical application.


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