Thursday, August 6, 2009

Judge - not much longer

By a vote of 69-31, she now just awaits swearing in. I suppose it's time I dropped the cute game of caller her "still Judge" and the like and got used to Justice Sotomayor. (Though, really, she's still just a judge, won't be Justice Sotomayor until she's sworn in.)

If the Republicans (31 of them, anyway) are right, she'll now throw off the, er, robe of moderation and obedience to the law and demonstrate that she's really a bomb-throwing radical tethered to nothing but her sympathy for underdogs of color. Rule of law be damned, she's unleashed.

Or maybe not. She seems, really, the most moderately conservative of possible appointments, one likely to fit in most comfortably as a less airy and less libertarian Anthony (the Constitution means whatever I say it does) Kennedy, though probably a bit more open to civil rights arguments and less open to civil liberties ones. The republic that withstood Dred Scott v. Sanford, Plessy v. Ferguson, Lochner v. People of New York, Korematsu v. United States, and Bush v. Gore (or perhaps Roe v. Wade, Mapp v. Ohio, Furman v. Georgia, and Tinker v. Des Moines School District, depending on your point of view) will withstand this, too.

The larger truth, of course, is that predictions are just that. Justices have surprised. So, of course, have movie stars (the report on Fred Astaire's screen test for Paramount was, "Can't act. Can't sing. Balding. Can dance a little") and for that matter bloggers who disappear even faster than they show up.

But the idea that Justices routinely shock and are altogether unpredictable is a myth based on careless (or non-existent) vetting and on the unpredictability of what issues will come before the Court in twenty or thirty years. In reality, we know that those who enter the Court with clear ideological backgrounds tend to stick to them.

Scalia, Thomas, Roberts, Alito - despite some occasional posturing and the odd surprising position, we knew what we were getting. Breyer had made his mark as a toady to the liberal vision of an Administrative State long before he got on the court. No surprise there. Ginsburg is what she's always been. It's those without strong prior positions (or who are sloppily vetted) that tend to be surprises. Stevens? Blackmun? Souter? Kennedy? O'Connor? There were some assumptions, but nobody really knew what they were getting.

Sotomayor? She was never the choice of the party's left wing. She had a great story and a moderate record. Despite the rantings of the right (and are you really gonna trust the views of the birthers on anything?), she was an easy sell to the Senate.

Still, until she's been ensconced on the high court for a few years, there's room for hope (or fear) that she'll actually be what the right claims. Or that she won't.


  1. I'm really quite nervous about her. The exclusionary rule, in all its various incarnations, is under attack. I worry that the conservative wing is ready to do away with it. I don't think I'll breathe a sigh of relief until she votes in a case affirming the exclusion of evidence that was obtained in violation of the constitution. I don't have any particular reason for thinking she could go that route; I'm just paranoid and I worry she's a little too pro-prosecution.

  2. Actually, I fear she's a lot too prosecution. Her track record in criminal cases (and quasi-criminal ones) is downright depressing.

    So now there's someone who actually practiced law - but never on behalf of the accused. Who was a harsh sentencer (at least in white collar cases), and who seems deeply deferential to law enforcement.

    Another prosecutor on the bench is far from what we need.