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Posted by on Jul 14, 2009 in Politics | 12 comments

Sotomayor and Whitehouse

Sonia Sotomayor will be confirmed easily by the Senate, with substantial Republican support, but Conservatives like Dear Leader Rush will continue to take ugly swipes at her, just as they have all along. But no matter. She is, as she proved once again yesterday, with her opening statement, a remarkable woman and an impressive jurist. Yes, she said all the right things, and her statement was nothing if not carefully crafted, but there is no denying, I think, her qualifications for the highest court in the land, not to mention her devotion to the law:

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

Yes, yes, her critics can point to this case or that as, to them, an all-too-revealing exception, and they can point to her race and/or gender as, to them, cause for immediate disqualification (according to their double standard, a woman of colour is fundamentally a product of her “identity,” and a racist/racialist when she discusses race, but a white male is above it all, as if his perspective is not that of the privileged), but she has her record to counter their lies and smears.

She has been appointed by Democrats and Republicans alike. She believes in the law, and in the judge’s primary responsibility to apply the law fairly to all. She is a woman of colour with an inspiring background and a wealth of experience from which to draw, not so as to make up the law but so as to understand the world around her — to relate to that world, to its good and evil and everything else in between, to the richness and diversity that appears before her in her capacity both as a judge and as a human being.

Sonia Sotomayor will make a very fine Supreme Court justice.

**********

Speaking of impressive, how about the opening statement (via Benen) of Sen. Sheldon Whitehouse (D-RI), which included this:

In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about “activist” judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes.

It is fair to inquire into a nominee’s judicial philosophy, and we will here have a serious and fair inquiry. But the pretence that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history.

I particularly reject the analogy of a judge to an “umpire” who merely calls “balls and strikes.” If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.

The “umpire” analogy is belied by Chief Justice Roberts, though he cast himself as an “umpire” during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” Some umpire. And is it a coincidence that this pattern, to continue Toobin’s quote, “has served the interests, and reflected the values of the contemporary Republican party”? Some coincidence.

For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some “balls and strikes.” Over and over, news reporting discusses “fundamental changes in the law” wrought by the Roberts Court’s right wing flank. The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

Very, very well put.

Liberals and Democrats need to fight back against the myth, propagated by the right and regurgitated by the media, of conservative judicial neutrality. Whitehouse’s statement was exactly what needed to be said.

(Cross-posted from The Reaction.)

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  • jwest

    Let’s ask Sotomayor if she shares the same eugenics views as Ruth Bader Ginsberg.

    We discussed the racist views of Ginsberg as it pertained to eliminating segments of population that “we don’t want too many of”, and now Jonah Goldberg of the National Review Online and LA Times has mirrored my questions in his new article:

    http://www.latimes.com/news/opinion/commentary/la-oe-goldberg14-2009jul14,0,4640584.column?track=rss

    Is it in the best interest of society to eliminate imbeciles, chronically poor, genetically defective and undesirables by abortion?

  • lurxst

    Reading Goldberg is normally an exercise in tolerance of the genuinely obtuse. As the first commenter to his latimes article notes, he is a master of setting up and knocking down strawmen of his own creation. I somehow missed the part wherein he manages to hook Ruth Ginsberg’s commentary (not belief, just comments) to Margaret Sanger. And ultimately back to Sotomayor? Why don’t we ask Sotomayor where she parked her car, as its about as relevant.

  • jwest

    Linking Ginsberg’s words back to Margaret Sanger is self-evident.

    “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”
    http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?_r=1&pagewanted=all

    The question for Sotomayor is whether or not she shares the same sentiments that abortion and (by extension) forced sterilization is the proper method to reduce or eliminate undesirable populations.

    Jonah Goldberg has some religious or moral misgivings about this approach, but then again he is not a big Sotomayor supporter. I, on the other hand, have long advocated abortion and forced sterilization, but I also have problems with Sotomayor. It would be helpful to know where she stands.

    • Ryan

      For his next act, jwest will argue that after a few millennia it was the conservatives who finally decided that slavery wasn’t acceptable. Lincoln was pretty racist too, and let’s not forget that the Founding Fathers went so far as to purchase human beings. The reason we get to call Sanger a liberal is that while she was advocating sterilization for ‘undesirables’ her conservative counterparts were murdering them. Conservatives have *by definition* been on the wrong side of any progress we’ve made on equal rights and continue to be today. At least Sotomayor will continue to balance the reactionary wing of the Supreme Court. Let’s hope Obama can stick around long enough to fill a more relevant seat.

  • Ricorun

    jwest: Is it in the best interest of society to eliminate imbeciles, chronically poor, genetically defective and undesirables by abortion?

    A related, and I would say a more relevant question is, who should be allowed to choose? Is it society or the individual parents? Said in another way, should society restrict the choices of individual parents or should they not? And if they do, to what extent should society also accept responsibility for those restrictions?

  • Davebo

    The entire Ginsberg quote including the portion Jwest peculiarly left out.

    JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

  • DdW

    No “watching paint dry” in Sotomayor’s or Whitehouse’s words…

  • jwest

    Who should decide?

    Why, me – of course.

    Seriously, the decision should be a combination of individual and state. In the Sanger model, I don’t believe there was any provision for personal choice. Present day abortion advocates don’t make the case for the needs of society at large.

    If someone wants to have a child who has been diagnosed in the womb as having a debilitating condition that would take extraordinary treatment and care, the parents should have the choice to continue the pregnancy if they can afford the results. Putting the burden unnecessarily on society is unsustainable now that medical science has progressed to the point that almost any condition can be treated and life sustained if enough money is poured on the problem.

    Preventative forced sterilization is also a requirement necessary for the new social contract of health care for everyone. When a 28 year old single mother of 11 starts complaining about the lack of immediate care for her children, the state needs to step in and limit the additional children she is allowed to bring onto the public dole.

    I’m open to better suggestions.

  • jwest

    Davebo,

    When Ginsberg talks about worrying Medicare funding was going to coerce people into having abortions that didn’t really want them, that is what she is talking about being wrong about, not that there are “population we don’t want too many of”.

    I wasn’t trying to cover up the entire paragraph (as I provided the link), just trying to simplify the relevant part.

  • jwest

    “Is it in the best interest of society to eliminate imbeciles, chronically poor, genetically defective and undesirables……”

    Run, Michael (Forrest),Run! 🙂

    Just when you thought you need to make a hard moral decision, technology comes through to save the day.

    Now we can build battlefield robots that can not only autonomously kill, they can also feed off of the dead corpses for fuel to continue on. Talk about ecologically friendly, this is about as green as a weapon gets.

    http://www.robotictechnologyinc.com/index.php/EATR
    http://www.foxnews.com/story/0,2933,532492,00.html?test=latestnews

  • AustinRoth

    If Sotomayor actually is a wise Latina, wouldn’t she know not to say something that stupid?

  • Actually, Ryan, jwest has on more than one occasion argued exactly that.

    Anyway, Michael, excellent post. Too bad it was immediately derailed by some non sequitur, rambling comment about a quote on an entirely unrelated topic made by an entirely different judge, who was nonetheless taken completely out of context by the derailing commenter. Oh well, so it goes.

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