Friday, July 17, 2009

No cause for optimism

You watch the hearings hoping for a hint that you're wrong.

Maybe, just maybe, Judge Sotomayor really does believe that the Constitution can be read expansively even if it's immutable. Maybe, just maybe, she believes that there is some possibility that her life experiences provide more than a commitment to gather facts before figuring out which law applies to them. Maybe, just maybe, she can recognize that it's sometimes necessary to figure out what the right question is in order to determine which precedent to apply.

Maybe she's not the mechanistic technocrat she claimed to be.

And maybe she really does believe that we have an inclusive Constitution designed to protect the people from government and to ensure the protection of civil rights and civil liberties.

But you sure couldn't tell it from the hearings. And you can't tell it from her opinions. So where do we look?

Do we join what Jeff Sessions seems to think and believe that a couple of random comments in her speeches reveal her true judicial philosophy which she's been hiding and refusing to follow for all her years as a prosecutor and a judge? That is, do we imagine that she's created a record as a conservative for decades in the hope that she'd someday get to the Supreme Court and become a raging radical? Alas, nothing suggests that she's either that wily or that stupid.

She was nominated by a President who's apparently willing to endorse indefinite detention for the prisoners at Gitmo, who thinks the Supreme Court got it wrong when it said you can't execute people who didn't commit homicide, and who despite pledging to end Don't Ask, Don't Tell, has not done so and filed a brief (available here) urging the Supreme Court to refuse to consider whether the rule denies the constitutional rights of gays, lesbians, and bisexuals (story here). Despite considerable huffing and puffing by the Limbaughs and O'Reillys, Obama has not shown himself to be a radical, not even a full-throated liberal. He's certainly given no hint that he's a committed civil libertarian. So why would we expect that he'd nominate for SCOTUS a judge who's more open to rights and liberties than he?

We might have expected him to nominate one who's a bit less of a technocrat than Sotomayor portrays herself. We might have expected him to nominate one who actually does believe that there are some small number of cases where recognizing the human dimension of the harm the government can cause matters. (After all, he said that was what he was doing.)

And maybe, just maybe.

But there's sure no hint of it.


  1. I'm troubled by the fact that most of my liberal friends and co-workers (and I don't use "liberal" as a pejorative term here, I would consider myself to be liberal as well) are so excited about Judge Sotomayor.

    I've read a few of her opinions, and follow the 2nd Circuit closely, and she seems fairly conservative to me -- far more conservative than Souter.

    I honestly don't understand why so many Republicans opposed her nomination. She's certainly not a liberal -- I wouldn't even call her a moderate. She's a moderate-conservative judge, and while she's qualified to serve, she'll tilt the court even farther to the right.

    Not a single sitting Supreme Court justice has ever defended the accused at trial, and as a result, the court lacks perspective and legitimacy.

    This wise latina -- and I agree that she is wise and learned -- seems to have little interest in the rights of the accused. I'd rather see Obama nominate another Breyer or Ginsburg.

    Sotomayor's nomination is not change we can believe in -- it's a joke. And unfortunately, the joke is on us.

  2. I don't really disagree, but it's worth remembering that Obama hasn't shown himself interested in pushing any traditional liberal agenda other than health care - and even in that he's made clear from the beginning that the true liberal model, single payer, isn't something he's after. He's a centrist president who maybe has liberal preferences (though maybe not) but he certainly isn't out there looking for fights with conservatives.

    All of which is a variation on the point of the paragraph I wrote about Obama in the post.