Dahlia Lithwick, a contributing editor to Newsweek and senior editor at Slate, is a brilliant Constitutional lawyer and scholar who has written extensively on the United States Supreme Court and on the Court’s cases and opinions.
No wonder she has been intensely focused on what impact the recent elections will have on the composition of our country’s highest court.
In fact, Lithwick was pondering that issue even before the 2008 presidential election was decided. She has not only been pondering, she has been “dead on.” (Except once, in my humble opinion.)
In a June 2008 Newsweek article, “The High Court: A User’s Guide,” she got our attention immediately with her opening line, “The next president could appoint up to three justices—the constitutional equivalent of a straight flush.”
In her article, she named the Justices who might be up for replacement in the near future: Justice John Paul Stevens, Ruth Bader Ginsburg and David Souter, who [was] only 68, but who “it’s widely rumored in legal circles… wants out.”
Lithwick also posited what kind of candidates the two 2008 presidential candidates would pick, and how she thought the two presidential candidates viewed the judiciary:
Presidential hopeful John McCain sees the entire judiciary as a punching bag, regularly blasting “judicial activists” who “abuse” the courts, evidently through their annoying habit of deciding cases in ways he dislikes. Barack Obama seeks jurists with “the heart, the empathy, to recognize what it’s like to be a young teenage mom.” If both sides sound like they are talking in code about the possibility of reversing Roe v. Wade, that’s because they are. But as important as the abortion issue is, it’s only a small part of how a new court might mean a new America. In sum, McCain wishes to appoint legal eunuchs; Obama wants someone who’s heard of Ashlee Simpson.
As to what was at stake:
The conventional wisdom that the Supreme Court is precariously balanced on a knife’s edge—with four liberals and four conservatives battling for the heart and mind of swing Justice Anthony Kennedy—is too simplistic. The current term has seen enough unanimous and near-unanimous decisions to suggest that the story of a 5-4 court is dramatic but inaccurate. That said, it’s clear there are four justices on the bench who deeply mistrust the judiciary, in the manner of a Rockette who doesn’t care for dancing… One more jurist at the high court who generally believes that jurists cannot be trusted would spell the difference between a court that is a coequal branch of government and one that cheers from the bleachers.
Now fast-forward to May 2009. Obama has been elected president, Justice David Souter has announced his retirement, and the new president is busy making “short lists” on potential nominees to replace Souter.
In a May 23 Newsweek column, just days before Obama announced his nominee, Lithwick feels that “the more outspoken Judge Diana Pamela Wood,” or “one of the academic stars” such as Stanford’s Pamela Karlan or Kathleen Sullivan would be a bold, “visionary” choice. Well, Obama picked the “somewhat more outspoken” (than Wood) Sonia Sotomayor, a choice that Lithwick later praises—and defends.
Lithwick was visionary herself in that article when she predicted that, “It’s clear that a moderate, minimalist technocrat will face the same rump-blistering confirmation as a liberal bomb-thrower…The game of destroying Obama’s nominee has little to do with the nominee. Whoever he or she might be, the actual name won’t matter in the race to tarnish him or her as a hysterical, abortion-loving activist.”
She also predicted the role that little word, “empathy,” would play in the nomination process: “For all the president’s talk of judicial ‘empathy’—a crazy-making term that’s come to mean something different to everyone hearing it…”
Immediately after Obama announced his selection, Lithwick continued to be prophetic.
In Newsweek’s “The Rational Hysterics,” she wrote, on the upcoming confirmation hearings:
Confirmation hearings are inevitably an invitation to behave badly…Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama’s Supreme Court nominee, Sonia Sotomayor, as a “liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.”
In vain, she suggests that “Instead of wading into a bruising identity politics war they cannot possibly win, conservatives— even the angriest conservatives—should wade into Sotomayor’s vast legal writings. There are hundreds of cases for them to read, and parse and quote out of context. Let’s have this confirmation battle on the merits, rather than in the sinkhole of identity politics.”
She also predicted how much “heat” Sotomayor would draw for her “wise Latina woman” comment of seven years ago, and concludes: “The angry screeching from the right that Judge Sotomayor is too emotional to fairly apply the law is already starting to sound, well, hysterical. And the fun is only just beginning.” How right she was, except it wasn’t very much fun to see seven white men vilify a decent, wise Latina woman.
Even before the Senate Judiciary Committee confirmation hearings began, in “Sotomayor in 60 Seconds,” Lithwick described play-by-play, almost blow-by-blow, how the hearings would proceed.
For example:
For those choosing to watch this spectacle on live television, it’s useful to point out that most of Sotomayor’s interlocutors will not be addressing her at all. Rather, they will be talking to their constituents back home, with Sotomayor serving as a sort of constitutional blackboard on which to sketch out their legal views
Hovering like a bad smell over these nonquestions and nonanswers, there will be unspoken bitterness and resentment about “identity politics” in America. Specifically, Republicans will complain that as a Latina, Sotomayor suffers from an excess of identity and a dangerous surplusage of politics. Despite an 18-year judicial record showing her to be a moderate, technical judge, Sotomayor’s critics will attempt to smoke out the raging inner racist they suspect lurks deep within her. They will do so by asking repeatedly about her “wise Latina woman” comment from a 2001 speech. (She will say she should have chosen her words better.) There will be a good deal of talk about judicial “empathy.”
As I wrote in a Newsweek letter to the editor:
Dahlia Lithwick’s piece (“Sotomayor in 60 Seconds”) turned out to be not only “a guide to the confirmation hearings,” but an uncannily accurate play-by-play prognostication of how six “conservative white men” would—using race, gender, life experiences, the “empathy” issue, and the “wise Latina woman” comment—try to rally and appease the folks back home.
The Senate Judiciary Committee has now endorsed the Supreme Court nomination of Judge Sonia Sotomayor, with all 12 Democrats on the judiciary panel voting for Judge Sotomayor, and all but one (Senator Lindsey Graham of South Carolina) of the seven Republicans on the committee voting against her confirmation.
However, Dahlia Lithwick is already looking ahead to the next Supreme Court Justice nomination.
In Newsweek’s “The Sotomayor Test,” Lithwick writes that throughout the weeks leading up to Sotomayor’s confirmation hearings, Obama “must have been thinking in threes.”
He wasn’t just seating this one Supreme Court nominee—he was teeing up the next two for more controversial hearings down the road. If that was the case, one has to wonder whether the Sotomayor hearings made it easier for Obama to select a more liberal candidate should John Paul Stevens or Ruth Bader Ginsburg retire in the next few years.
Quoting Manuel Miranda, chairman of the Third Branch Conference, a conservative judicial advocacy group, Lithwick suggests that, because Sotomayor portrayed “herself as someone who is bound by the rules that conservatives have been articulating for so many years,” if Obama’s next Supreme Court nominees hold even slightly less mainstream views, “Republicans now can say, ‘You don’t meet the Sotomayor test.’ ”
Lithwick worries that good Obama nominees “may not be able to meet this new Sotomayor standard,” and that “[W]hat saved Sotomayor from an even more contentious hearing was her nearly unblemished 17-year judicial record…But that sets an almost impossible standard for Obama’s next justice, who will need to have the near-magical combination of hundreds of narrowly decided cases, yet no controversial rulings on guns, abortion, the death penalty, or executive power.”
I am no legal scholar, but I believe in precedent. In this case, precedent being Republicans’ proclivity for focusing on ad hominem and character assassination, rather than focusing on qualifications, as they should have with Judge Sotomayor. And, as they did with Sotomayor, they will develop another “Sotomayor-like test” based on equally outlandish, if not divisive and prejudicial, “issues” that brought them scorn and ridicule during her confirmation process. With such a “Sotomayor-like test” they will, once again, not be able to stop Obama’s nominee.
This is the one and only instance where I humbly disagree with Dahlia Lithwick.
The author is a retired U.S. Air Force officer and a writer.