July 16, 2009

The Sotomayor-is-lying meme.

I'm seeing it a lot. In the comments on this blog. And here, for example. And, this, from lawprof Michael Louis Seidman has gotten a lot of attention:
... I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?
Well, yes, of course, but do we really want to call this lying? Don't all the nominees lie that way? Sotomayor is laying it on particularly thick. And at some point, we do need to acknowledge the disgust — like Seidman — or at least — this would be more my speed — laugh and roll your eyes.

John Roberts said essentially the same sort of things about judging, but the humble judge pose is perhaps less strained coming from a conservative. Now, I do think Sotomayor and her advisers did study the John Roberts confirmation performance. This — I think they decided — is the ideal. So be like that. But it is more absurd coming from a judge who, we think, is going to do more expansive things with the clauses of the Constitution. And there's something clunky and obvious about Sotomayor's John Roberts routine. Acting like Roberts came more naturally to Roberts. But let's not reject the woman for bad acting.

89 comments:

Original Mike said...

I'm more concerned about the observations (Glenn Reynolds has pointed to several) that she just doesn't seem that smart.

Triangle Man said...

Perhaps this Is the beginning of the end the era of contentious Congressional confirmation hearings. From now on all nominees should take the same approach as Roberts and Sotomayor. Spare us all from your foolish Litmus tests!

Issob Morocco said...

Can we reject her for bad hair do?

AllenS said...

She's not lying, she's just laying it on particularly thick.

Got it.

Perjury: laying it on extra thick.

John Althouse Cohen said...

But it is more absurd coming from a judge who, we think, is going to do more expansive things with the clauses of the Constitution.

It was just as absurd coming from Roberts. "The law" doesn't say that the Constitution shouldn't be interpreted expansively. The Constitution doesn't contain any text about how it should be interpreted. In fact, if Supreme Court precedent is part of "the law," then there's quite a bit of law supporting the idea of interpreting the Constitution expansively.

As to Roberts, Judge Richard Posner has made the point well in his book How Judges Think: "Neither [Roberts] nor any other knowledgeable person actually believed that the rules that judges in our system apply, particularly .... the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires. We must imagine that umpires, in addition to calling balls and strikes, made the rules of baseball and changed them at will.... Roberts may have made a tactical error.... In the spring of 2007, less than two years after his confirmation, he demonstrated by his judicial votes and opinions that he aspires to remake significant areas of constitutional law. The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts's reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings."

Lem said...

But let's not reject the woman for bad acting.

What else is there. She's not giving us much to work with.

Lem said...

She has even rejected Obama's emphathy clause.

rhhardin said...

Umpires are not taken to care or not care, but to rule according to the rules regardless.

In the case of a judge, the question is what is the rule.

As to expansively, how do voters get a say in this.

In the case of the right to bear arms, for example, you might want to say that the voters' say comes via the amendment process rather than by way of modern social engineering.

Circling back to the umpire, the motto: No social engineering in umpiring.

Cabbage said...

The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts's reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.

Yeah, that conservative revolution in standing has really shaken up modern constitutional law.

TitusIamFartingQuiteABitThisMorning said...

Only liberals and those judges appointed by democrats lie.

Also, Sotomayor is dumb.

Conservatives and those appointed by republicans are forthright and honest. As well they are smart.

Triangle Man said...

Titus, you forgot to mention racism.

As well, it seems that a colonoscopy might be in order.

TitusIamFartingQuiteABitThisMorning said...

I just want to roll up Beauregard Jefford Sessions III in his little white sheet he has hanging in his closet and tuck him into bed so can dream of lynchings past.

He is doing a wonderful job and will be an excellent recruiting tool in the future for republicans to seek out old white southern men to the party. It's a win win for our party.

My constant farting turned into just pinching a rather pleasant yet substantial loaf.

rdkraus said...

Why can't she repeat what she has said in the past and endorse it?

Why can't she just explain to us why she expects that latina women would make better decisions than white men? She said it and wrote it on numerous occassions. Why does she believe that?

Why can't she just explain that, yes, she believes that "policy" is made by the Courts (ie. she believes in being an activist Judge and legislating from the bench - why not admit it, other Judges have certainly done it - go read Roe v Wade [I mean there is NOTHING in the Const. about abortion, or trimesters, or a right to privacey - they made it all up, legislated it]) or almost any opinion by O'Connor with her three part tests, expiring AA etc.)?

Why can't she just explain why she supports La Raza and what that means to other Americans?

Why can't she admit her involvement with the Puerto Rican Defense group, it's goals and how she supported them?

Why can't she tell the truth?

Aren't we entitled to hear it.

MadisonMan said...

Does the Constitution even say that the Senate can reject an appointment? How does Advice and Consent become reject?

TitusIamFartingQuiteABitThisMorning said...

Since pinching my loaf the farting has ceased.

Isn't that interesting?

There must of been some sort of correlation or coronation or coordination or consolidation.

The Crack Emcee said...

Here we go again, Ann:

No, let's not excuse a judge for lying. That would be too - what? - obvious? Too much of The Macho Response?

I'm still waiting for some explanation of the game being played here. Is this supposed to be smart conversation? Or maybe it's evil cousin, being clever? Our world appears to be going to hell in a handbasket and, for some reason, certain segments of people refuse to change their thinking back to that which made us successful - insisting it's "progressive" to follow the lemmings. (Silly me, I thought they were penguins,...)

Oh well, for now at least, I'm far back at the end of the line,...

TitusIamFartingQuiteABitThisMorning said...

Clam's Gulch-totally named after a women's cooch.

traditionalguy said...

It is pretty simple. The men we put into authority positions over us are expected to withhold all candor and just get a necessary job done. But the women, especially a woman with a servant's heart, that we put into authority over us had better be totally under our control and serve us exactly the way we order them to do it. In legal Master/Servant terms, we allow males be independent contractors, while we demand that the females remain our employees. I guess it comes from men's innate role as guardians of women.

TitusIamFartingQuiteABitThisMorning said...

When is someone going to ask her if she is a dyke.

No husband or children behind her during the proceedings.

Just sad. Another sign of the demise of the American Family.

peter hoh said...

To borrow from A Few Good Men:

You want the nuance? You can't handle the nuance.

Yes, I'm certain that Seidman can handle the nuance. But those opposed to Sotomayor have amply demonstrated that they will distort that which is nuanced. Hence, she is trying to be as blunt as she can be, repeating the same simple phrases about judging based on following the law.

MadisonMan said...

I'm just waiting for her vote to overturn Roe v. Wade -- when all her harshest critics here on althouse become her newest, bestest friend.

Hypocrisy is not limited to DC -- it's only perfected there.

I suspect Sotomayor does not talk about the policy soundbite -- or anything else -- because none of the Senators are there to actually listen, or to engage in a thoughtful discussion, but just to triangulate and play a part in a political game. It is clear to me that at the end of the day, each Senator on the Judiciary Committee is receiving "suggestions" from their respective National Party on how to frame the next day's questions.

My own opinion is that policy is made on the court because Legislatures pass laws that cannot anticipate every nuance of real life. But I rather doubt Legislators want a short lecture from the Judiciary on their inability to foresee how the laws they pass might be shortsighted.

traditionalguy said...

Madison man...Thanks for that insight @8:06. That was the most intelligent comment I have read here in 3 days.

Maguro said...

John Althouse Cohen - Isn't that exactly the point? Judging by her track record, Sotomayor believes, like you do, in an expansive reading the the Constitution.

Why doesn't she defend her point of view, like you just did, instead of trying to pose as a faux-originalist?

Henry Buck said...

Maybe, just maybe, they should pass far fewer, but better, laws.

Henry Buck said...
This comment has been removed by the author.
Bruce Hayden said...

Hope the thread doesn't get hijacked here because of this, but...

Let me suggest that many of those on the right consider what she is doing before Congress right now closer to lying that what Bush (43) was repeatedly vilified for.

Also, keep in mind that in the end, the Republicans probably cannot keep her off the Court. But, if she can be shown to be a lier, or maybe, just too stupid for the job, then the Republicans can use that later against Obama and the Democrats in Congress.

It also gives the Republicans who vote against her some cover. Estrada was denied an appeals seat because he was (according to the Democrats) too extreme (i.e. a mainstream Republican Hispanic). The Republicans can counter that they only voted against her because either she was obviously lying, or is too stupid for the job.

Keep Miguel Estrada in mind here - the Democrats who filibustered his nomination to the D.C. Circuit are almost all still in the Senate. They really didn't pay any political price for their actions. The Republicans who vote against Judge Sotomayor may be in a similar position if they can provide good reasons for voting against her confirmation.

rdkraus said...

NRO sums up what you are expected to believe..

That her “wise Latina” argument was just a bad “rhetorical flourish” that accidently left listeners believing she disagreed with Justice Sandra Day O’Connor, when she actually agreed with her.

· That the misperception of the “wise Latina” argument remained uncorrected through six separate uses of it.

· That Sotomayor genuinely has “no idea” why George Pavia, a senior partner in the law firm that hired her as a corporate litigator, would say, “I can guarantee she’ll be for abortion rights.”

· That she did not read the legal briefs filed by the Puerto Rican Legal Defense and Education Fund while she was on that organization’s board.

· That she genuinely does not have an opinion on whether citizens have a right to self-defense, and could not think of “a case where the Supreme Court has addressed that particular question,” despite the fact that the Heller case decided last year declared, “The inherent right of self-defense has been central to the Second Amendment right.”

· That she “actually agrees” with Justices Scalia and Thomas that judges have to be “very cautious” about using foreign law, despite a speech earlier this year in which she said, “Suggest[ing] to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding.”

· That she really believes that “we don’t make policy choices in the court,” even though she said in a 2005 appearance at Duke University that the “Court of Appeals is where policy is made.”

· That she genuinely believes that “the process of judging is a process of keeping an open mind,” when she said in a 1999 speech that there is “no objective stance but only a series of perspectives. . . . Aspiration to impartiality is just that, an aspiration.”

· That she thinks the man who nominated her has a fundamentally flawed perspective on the role of judges, and that she will not “approach the issue of judging in the way the president does.”

John Althouse Cohen said...

John Althouse Cohen - Isn't that exactly the point? Judging by her track record, Sotomayor believes, like you do, in an expansive reading the the Constitution.

Why doesn't she defend her point of view, like you just did, instead of trying to pose as a faux-originalist?


First of all, I don't know how you know so much about my methods for interpreting the Constitution.

Second, I wasn't taking the position you're describing. This is probably my fault since I wrote the comment too quickly. I should have prefaced it with: "Even assuming for the sake of argument the convenient dichotomy that there are two kinds of judges -- conservatives, who apply the text of the law, and liberals, who add their personal preferences to the law...."

I think that dichotomy is a drastic oversimplification. Contrary to what one tends to hear in the popular media, I don't think all constitutional issues come down to a stark choice between either straightforwardly applying the unambiguous law that's been written out in advance or making up policy out of the blue. I only wish that legislators (including drafters of constitutional provisions) were so brilliant that they always wrote clear law that will straightforwardly apply to any facts. These are all human beings we're talking about -- they're not perfect. I don't know how conservatives can be so distrustful of government some of the time, yet believe the law works in the utopian way they describe it.

On top of that, I haven't studied Sotomayor's rulings, so I don't know where she falls on the liberal/conservative spectrum. I don't even know if that's possible when you're looking at rulings by a judge who's been bound by SCOTUS precedent, and is being considered as a SCOTUS judge who has the power to change the precedent (which, again, is why Roberts's umpire analogy was incorrect).

Terrence Berres said...

John Althouse Cohen said... "The Constitution doesn't contain any text about how it should be interpreted."

Not even the texts of the Ninth and Tenth Amendments?

Justin said...

Don't you people remember the Roberts hearings at all? Remember how Democratic Senators pulled one sentence or two out of memos Roberts wrote while working for the Reagan administration, and accused him of harboring a secret design to overrule Roe v. Wade? Remember how Republican pundits complained about the degeneration of confirmation hearings into partisan showboating? And complained about the use of selective quotes and the like?

I had a real problem then with the way Democrats handled Roberts' confirmation hearing. And I have a real problem with the way Republicans are handling Sotomayor's now. You can't have it both ways. Those of you who are buying what the Republican pundits are selling about Sotomayor, but rejected what the Democrat pundits sold about Roberts, are hypocrites.

It's trite but true: elections have consequences. Roberts was entitled to a unanimous confirmation. So is Sotomayor.

John Althouse Cohen said...

Not even the texts of the Ninth and Tenth Amendments?

The 10th Amendment doesn't say how the Constitution should be interpreted.

The 9th Amendment does, but it doesn't exactly resolve all controversial constitutional issues! And I don't think there's any other constituional provision that refers to interpretation.

The basic point still stands: It's incoherent to say that judges should find everything in the plain text of the Constitution, since the plain text of the Constitution doesn't say that it should be interpreted only based on its plain text. The very existence of the Constitution implies that human beings will have to use some interpretive method to apply it in unpredictable contexts, and it's an open question which method is best.

EDH said...

Mindy Cohn, as judge Sonia Sotomayor, in a very special episode of Facts of Life: The Confirmation Hearing.

TitusIamFartingQuiteABitThisMorning said...

These confirmation hearings aren't really about Sotomayer. Instead they are a bitchfest between the republicans and democrat senators. That's all.

Big Mike said...

But let's not reject the woman for bad acting.

Why not?

TitusIamFartingQuiteABitThisMorning said...

I am sick of hearing Wise Latino Woman.

Fred4Pres said...

Acting? I am more concerned how she will act as a Justice. My guess, badly. But hey, elections have consequences, the Dems could get Bill Ayers through if they wished, and the alternatives (Diane Wood, Janet Napolitano, etc.) are worse. So we have a week of lightly watched Kabuki theater at the Senate.

Salamandyr said...

The problem has never actually been, that a judge will use their background, their ideas about justice, the laws of the international courts, or whatever passed through her gastrointestinal tract the night before to decide the "hard cases". Using common sense, or astrology to decide cases where the law is unclear is the dodge, it's the way to discuss judicial overreach without accusing current judges of engaging in impeachable offenses.

The real question is, when the law, clearly written, disagrees with her notions or prejudices, will Sotomayer apply the law, or do her best to subvert the clear meaning to her own ends?

Being a judge means occasionally enforcing an outcome that you personally find unpalatable. What I want to know is Can she handle this?

Fred4Pres said...

And for those jerks at CNN, I saw you this morning while at the gym. You suck. They note that the GOP is going light on Sonya, then say hard right groups are attacking Latinos and Latinos will not forget and will punish the GOP for this.

Really? A little editorializing there CNN? I have two words for you.

Miquel Estrada.

Dems hate Latinos who do not tow the line. They are not allowed to think, just do what they are told.

Balfegor said...

Well, yes, of course, but do we really want to call this lying? Don't all the nominees lie that way?

These are civic lies, the kinds of things our leaders need to maintain in public just to sustain public legitimacy -- like rhetoric about everyone being equal, or the way Presidential candidates are obliged to pretend they are equally delighted by every town and city they come across. If judges went about boasting that every time there's even arguably an ambiguity in the law, or it's potentially unclear which law or principle or right controls, they get to decide the result how they like, and the loser can suck eggs, it's not like the awful majesty of the law would endure particularly long. People wouldn't put up with that sort of thing, and the court would be a figure of fun, rather than an object of reverence the way it is now. It's tatemae and honne. It's Bismarck on sausage making.

bagoh20 said...

I'm sorry, but it appears the law is just an embarrassing game. We have all level of lawyers and law professors justifying bold faced lying under oath for the high principle of not rocking the boat. The play must follow the script with the end predetermined. Just pathetic.
So telling the truth and admitting weakness or hypocrisy is worse than just lying outright.

How can anything you argue about have meaning when this is a basic standard of the craft?

What if doctors took this approach and doled out medicine based on ethnicity and then lied about it to get the top job deciding who gets medicine? We all just smile and say: "It's trite but true: elections have consequences." or "let's not reject the woman for bad acting."

miller said...

She's entitled to a 100-0 vote? Really?

Robert Bork and Clarence Thomas would like to talk to you.

miller said...

She sounds like a nice woman, and would perhaps be endurable to listen to if she was your dinner companion.

But this is the best the Democrat Party can come up with? An intellectual and legal lightweight?

She's going to get a lifetime appointment, and will be one of the few people in this country who can declare policy ex nihilo.

You're OK with that, because she has the magic (D) after her name?

MadisonMan said...

A 100-0 vote would mean all the Senators would have to be working on the same day. That never happens.

Baron Zemo said...

Your blog is a model of consistency dear lady.

Your muse has returned with tales of his feces.

You must be so proud.

miller said...

But I like the assumption that Teh One™ is entitled to a rubber-stamp Senate.

traditionalguy said...

The make policy at Appellate level issue is fun to argue, but the reality has always been that the Compromise Legislation on hot topics always stops short of a coherent outcome. Congress is set up to divide up the goodies in a regional encounter of interests over 50 States contained in 8 regional interest areas. They openly horsetrade that stuff...Do my Bill and I'll do yours next week. It's called politics, not science. Then that habit carries over into all their doings...most days Congress will calmly cut a baby in half and be proud of the outcome. Then the Appellate courts sort out the resulting mess over several years and several million dollars in legal fees (Oh boy!). Then Appellate Courts fix the holes in legislation when they DECIDE CASES. That is their job. They can decide a case by adding missing policy to the new laws, where needed, or they can refuse to decide a case and leave everyone in limbo, which would not be doing a noble act, it would be Judicial Malpractice. We need speed and finality from Courts to keep speed in our own risk taking personal and financial decisions. Wanting your Judges to refuse to decide cases until Congress gets its act perfectly together is wishing for a disaster. Sonia is calmly telling us how competant a Judge she will be. But the suspicious among us demand it both ways from someone who is an offensive, Hispanic Looking Female, although they were happy with Roberts giving the same answers and called him brilliant when he gave them. Yes that is a double standard, and hispanic voters are smart enough to Get It.

miller said...

Remember, this is the best that the Democrat Party can come with.

Balfegor said...

What if doctors took this approach and doled out medicine based on ethnicity and then lied about it to get the top job deciding who gets medicine?

It's widely known that doctors' diagnoses will differ based on the race of the patient. Sickle-cell and Tay-Sachs are only the most famous examples -- I think hypertension is another. And here is a doctor complaining that mainstream medical pedagogy is too absolute on the importance of looking at patient race in reaching a diagnosis.

I would not be particularly shocked or disturbed if a high medical official felt he was obliged to deny in public that diagnoses could legitimately be affected by the race of the patient.

miller said...

"The many times I used the 'wise Latina' remark were a mistake, which I made over and over not realizing it was a mistake until I came up for a lifetime appointment (what a coinky-dink!), but you can trust me to be a brilliant jurist and sophist."

Remember, this is the best the Democrat Party can come up with.

miller said...

Franken and Sotomayor -- it doesn't get any better than this!

bagoh20 said...

The argument should not be that her dishonesty is OK because the other guy did it. Sheese! We should not be accepting of it, then nobody would do it. We would get straight answers and know the truth about the nominee. They may be forced to lie, but only because we accept it. Are we really looking for craftsmanship in lying? Is that the test for a SCOTUS judge?

It's being argued that we should accept lying and give automatic unanimous approval. This is very disappointing, my friends. I find us unworthy of our constitution and lame defenders of it.

It's just a blog, if you can't argue for principles here, where will you?

miller said...

The very best nominee.

bagoh20 said...

"I would not be particularly shocked or disturbed if a high medical official felt he was obliged to deny in public that diagnoses could legitimately be affected by the race of the patient."

No doubt, but the question is would you argue that we should defend the lie and give him the highest authority, and call him "honorable"?

To do so makes us complicit and responsible for lying official's very existence and power.

Mark O said...

I would like someone to ask her whether her prior inconsistent statements would be seen by her, as a judge, to impeach her current testimony and require her, as a judge, find she lacked credibility in all her testimony.

Maybe she would sustain an objection to the proposed impeachment on the theory that it was not inconsistent and wait to see if that ruling would disappear before it was overruled.

She certainly knows how to game this system.

rightwingprof said...

"Well, yes, of course, but do we really want to call this lying? Don't all the nominees lie that way?"

The (il)logic in this statement is breathtaking.

holdfast said...

· That she genuinely believes that “the process of judging is a process of keeping an open mind,” when she said in a 1999 speech that there is “no objective stance but only a series of perspectives. . . . Aspiration to impartiality is just that, an aspiration.”

-I agree that no human can be truly, perfectly impartial - but every judge should be striving to get as close as they possibly can. I take her statements like the "Wise Latina" and others to mean that she does not share my views on this. If so, I would like her to state it forthrightly.

Kirby Olson said...

I think the conservatives at least said that they were against abortion, but wouldn't revisit settled decisions.

She is pretending she never said the things she said, or they were just dumb remarks, even if she said them half-a-dozen times in different situations and contexts.

She did take an oath to tell the truth, the whole truth, and nothing but the truth, didn't she? (Actually, I'm not sure -- but there was a photo with her hand up, and I assume that she had to do that.)

she just seems to be making a mockery of justice.

Perhaps we should all just roll our eyes and laugh at the notion of truth?

She's sending a really bad message. It's not just the bad acting. She's acting in bad faith.

Who's to know if she really hurt her leg? Maybe she just wants sympathy points. It used to be Tippecanoe and Tyler, too. Now it's Race, Gender, and DISABILITY, too.

She could be faking at least one if not two or three of those.

Balfegor said...

No doubt, but the question is would you argue that we should defend the lie and give him the highest authority, and call him "honorable"?

I myself wouldn't be particularly vocal in defending the lie, I suppose, but there are honourable people who would be keen to defend it, because it ties into national myths about race that are essential in living in a multiracial society organised the way ours is organised. That's one of the reasons that people react with horror and disgust to Sotomayor musing about "inherent physiological differences" between the races affecting their jurisprudence -- we don't actually know enough to foreclose the possibility (as far as I know), so perhaps this is just an expression of her having an open mind (as she says, she does not particularly "abhor" the possibility). But even the suggestion undermines part of our national myth.

Essentially, I don't think this kind of public hypocrisy is dishonourable, and it does not trouble me. As I said, it's honne and tatemae.

bagoh20 said...

Balfegor,

I'm just a simple man, with simple, but lofty desires, but:

This dishonesty, regardless of how common, causes serious human suffering and injustice. Accepting it without a fight is dishonorable. Of course, I'm assuming honor even matters.

As I said earlier: "It's just a blog, if you can't argue for principles here, where will you?"

Ralph L said...

Balfegor, I assumed he meant doling out treatments based on race, not diagnoses.

Following politics at all closely makes you either cynical or enraged. Or both.

Carol_Herman said...

FROM CAROL HERMAN

The law is just about "important words." So I guess you can say you don't see lying in debate positions. Just a way of advancing your pieces on this game board. (And, yes. I'm sure Sotomayor is well aware of John Roberts excellent confirmation. Given that there were those who were going to try and bring him down; because they hated Dubya so much.)

What is being exposed, however, is how systematically Sotomayor could do all these "tricks" ... burying even her signature from Ricci, let's say. And, then also refusing to acknowledge there was even a result. (And, LYING, when she said "she thought they'd make a request to go 'en banc') Seems this lady isn't all that interested in the finer points of da' law.

And, when she becomes a Supreme Court Justice; she'll have to figure out how to deal with John Roberts, and Scalia. And, Thomas. Where her games aren't a part of their agenda. Perhaps, she'll bond with Anthony Kennedy?

For a while we will get terrible, by split decisions from the Court.

And, then? What about American expectations? Sure Sotomayor could be chosen. Just like the brain dead John McCain was "chosen" for the GOP nomination.

Have you ever wondered why people who make their livings in the public eye seem to care so little for real talent?

If Obama were a better man he'd have selected a giant, like David Boies. Didn't. Now? Only we have left, over time, is KARMA.

former law student said...

If Obama were a better man he'd have selected a giant, like David Boies.

The second Justice Harlan was the last giant on the Court, although I have a soft spot for Brennan and Marshall. I cannot comprehend the mind that selects a Warren Burger, a Clarence Thomas, or a Samuel Alito.

Ignorance is Bliss said...

John Althouse Cohen said...

"The law" doesn't say that the Constitution shouldn't be interpreted expansively. The Constitution doesn't contain any text about how it should be interpreted.

True. The law also doesn't say what the meaning of the word 'is' is. That doesn't mean that we get to make up any meaning we want to achieve the results we desire. There is no point in having a written constitution and laws if we are not going to try to interpret them they way they were meant to be interpreted by the writers themselves. The point of writing them down is to communicate what was agreed to. And the only way that communication works is if the reader actively tries to understand what the writer was trying to communicate. ( That goes for blog commenting too. )

Of course there are places where interpretation is appropriate. Phrases like 'Unreasonable searches and seizures' or 'Cruel and unusual punishment' require it. However if you have to discuss penumbras and eminations, you've clearly lost your way.

In fact, if Supreme Court precedent is part of "the law,"...

It may be part of "the law", but it is not part of the law. It is valuable to provide consistancy across the country an through time, but it should never override the actual intent of the people who voted for the law or constitutional provision in the first place.

Smilin' Jack said...

What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Well, yes, of course...


Sheesh, doesn't anybody know how our legal system works? Under our system, people only have to lie until they're confirmed, not "throughout their professional carers." After confirmation they can do what they want..it's a lifetime appointment.

John Lynch said...

I don't see why this matters. The Republicans aren't going to filibuster. She's going to be confirmed. Where's the suspense? Clearly all she needs to do is not say anything too stupid.

bagoh20 said...

"I don't see why this matters. "

It seems clear that our political system will confirm her unless she explodes like a pinata expelling fortune cookies filled with tiny quotes de Titus.

The thing that matters to me is how my fellow citizens react to such a bogus system. It informs me about the level of hope I can have for my country and the virtue of it's legal system, and consequently, what to expect from it in the future.

Kirk Parker said...

"the court would be a figure of fun, rather than an object of reverence the way it is now."

Huh?? Speak for yourself. My contempt for the court, based on their atrocious commerce-clause jurisprudence alone, is difficult to describe on a family-friendly blog like this one.

Kirby Olson said...

It still matters because Obama himself is on trial in terms of a second election. She's his judgement call, which calls his judgement into question. She's an incredible liar, which makes you think that he's an incredible liar, too. They reflect upon one another, like a paper angel, they are part of the same ideology that we keep seeing make copies of itself.

Cedarford said...

The Crack Emcee - "Our world appears to be going to hell in a handbasket and, for some reason, certain segments of people refuse to change their thinking back to that which made us successful - insisting it's "progressive" to follow the lemmings."
======================
I think what makes it difficult, exceptionally difficult, is that we have the simultaneous twin failures of America dominant, though opposite ideologies. Both happening at the same time. Both which have wrecked our economic system.
Both Reaganomics and Progressivism.

Progressivism:

1. Basic credit and stability of market rules can be dispensed with if desired social engineering is the goal. (Putting minorities in homes they can't pay for, student loans for degrees that are so low-paying that Fed loan default is assured.)
2. Rule of law meaning endless litigation in nearly all aspects of criminal, liability torts, public construction - many spanning decades - is crippling us in terms of our faster, nimble foreign competitors. (An adjacent state discovering it has no road, structurally deficient bridge, public space projects "shovel ready" because all projects must clear 2-30 more years of environmental, activist groups, and routine gov't litigation between warring state and Federal agencies.)
3. Job hiring not being about the best and most competitive, but now about the "right social blend". The cancer of identity politics formalized in most walks of life by activist lawyers without Americans getting any remedy through their vote.
4. Exponential growth of government bureaucrats, lawyers, red tape....and taxes.
5. The central truth of our time is Al Gore. And devotedly following him and others that have set up the hedge funds to capitalize on "Green regulation" and "evil carbon rationing - cap and tax brokerage trading centers" Algore and others own a piece of. Along with their "carbon offsets can be purchased - private forests and raches"

Reaganomics:

1. You don't protect domestic job markets from pillaging by China, other foreigners eager to take what Americans worked 200 years to build. Not when Ruling Elites can get a big cut of cheap labor corporate profits.
You just tell the American worker they are soft, have too many cushy benefits....and need to work smarter and harder in "exciting high tech jobs" that will replace manufacturing. Because the Chinese and Indians will never figure out how to build high tech products like computers, cell phones, solar panels...or high tech services like software programming or green engineering.

2. The more you borrow from China and cut taxes and increase gov't spending and Wall Street profits going to the richest 1% - the more you grow the economy. And the more you can cut taxes! Honest!

3. The key to American economic stability is to get the dang gummint out of the business of the wise leaders of banking and Wall Street and the INDEPENDENT Fed Reserve!

4. With Reagan long gone, the correct application of Reaganomics is to be well to the right of Reagan himself..no RINOs like even Reagan was on some things. Hispanics and Reagan Democrats are discardable if they lost ground badly in the last 10 years. It's all about "exciting the Base" with red meat Palinesque cultural warrior issues - that ignore pervasive fear of job loss to 3rd Worlders and the growing chasm between the rich that are getting richer destroying the domestic job and industrial markets - and everyone else.

5. Health care is not a problem. American health care is perfect, best in the world!! Any changes would be socialism!

================

John Lynch said...

I don't see anything special about Sotomayor. Liberal president, liberal nominee. So if you don't like liberals you won't like her.

I don't think she was the best choice Obama could have made among the liberal judges available. The problem is that he seems to have decided on having a woman AND a minority, which is going to limit the choices available.

There's no way around that. If you limit the available candidates by a series of Boolean loops unrelated to qualifications, then your available talent choices will decline. That doesn't mean on an individual level latinas are less wise, but there are a lot fewer of them so the chances that any one is outstanding is lower than the full pool of judges.

Cedarford said...

How do the twin failures of Reaganomics and progressivism relate to Sotomayor?

The Republicans have alienated the masses once drawn to a Reagan that promised broader prosperity to ALL Americans, saved US jobs from the Japs. They were in power when it all went bad, so they took the worst punishment at the voting booth. They are now reduced to a rump party of about 26% until Dems ovverreach too much. (Which Obama and Pelosi and the Progressive Jews like Waxman, Barney Frank, Schumer, etc. appear to ovverreaching greatly..)

Meanwhile, what the discredited Republicans - blamed for so much of what has gone so wrong in recent years - what they say about Sotomayor is simply politically irrelevant.
The Dem supermajority votes and control of Congress plus the Presidency makes Sotomayor a lock.
Democrats could have nominated a paralegal gay female hispanic now running a taco roadside stand truck in Houston, given the jobs loss disaster...Nominated her to SCOTUS, and gotten her in.

rhhardin said...

1. You don't protect domestic job markets from pillaging by China, other foreigners eager to take what Americans worked 200 years to build. Not when Ruling Elites can get a big cut of cheap labor corporate profits

Trade leaves more better off, much better off, than the job losses hurt.

Let the people with the would-be protected jobs first deny themselves all the advantages of trade that they've been using, and then complain.

The division of labor is the only way to produce wealth. The more division, the more wealth. International trade is just a division of labor.

That's not to say you might not want to put a safety net under the workers displaced, but you don't want to protect their jobs.

In detail, Mike Munger is very good, podcast.

As far as I know, all economists agree about this.

holdfast said...

C4- Assume one likes Reaganism but would like to fix or correct some of the flaws.

The first big one would be illegal immigration - that would cancel a lot of the downward pressure on salaries within the US, and would be good on rule of law and other grounds as well. Of course, Hispanics are now a huge voting block, bigger than blacks, and a lot of them would see this as a personal attack. In theory, blacks should support this move because they are among the first to be undercut - but the various black political/pressure groups keep them firmly in the Democrat camp.

a psychiatrist who learned from veterans said...

Volokh conspiracy has some trenchant criticisms on her testimony as 'misrepresenting the Constitution.' As to these 'lies,' I would tend to agree with Ann that she has 'corrected' her words to agree with a wider audience. To me it just suggests that the Latina is a good facsimile of the storied Latin lover who finds mon cheri the most desirable and attractive woman in the world, someone who he can not wait to marry and live with forever (until maybe the weekend is over). In this case, perhaps she is evidencing her desire for the Supreme Court position. I suppose the judgment of some will depend on how she handles the next Ricci case.

former law student said...

Trade leaves more better off, much better off, than the job losses hurt.

It's better to have a house full of Chinese tchotchkes than a good-paying job?

Then why was China so eager to become a manufacturing nation? Why have they prospered so much since they made that decision?

Since the manufacturing jobs left, we have had only the illusions of prosperity conferred by the dot-com bubble and the housing bubble.

I'd rather have a fundamentally strong economy than a bubble economy. What's the new bubble going to be, anyway?

rhhardin said...

China wants the jobs because they come out ahead. We want the products because we come out ahead.

Try the podcast.

bagoh20 said...

I've been managing manufacturing most of my life and China has been the only real competition. With labor rates a fraction of ours, they have a clear advantage. We have found ways to win some of those battles regardless, but the biggest hurdle is our government rules on labor. Workers here could compete much better if they were allowed to bargain freely with their employer. Work any hours they want for any pay they can agree too.

I have to say to employees everyday: "Yea, that's a good idea, and it would really help you and the company, but the law just does not allow it."

Also Rhhardin, The constant re-division of labor has worked when allowed so far, but with the speed of assimilating methodologies made possible today, I'm not sure it will continue. New industries are moved offshore now almost immediately. That wonderfully successful function may itself become obsolete. One of the few consolations of being older and mostly done earning money is I won't be around to find out.

Aaron said...

um, so when she said she was trying to agree with o'connor when she made that wise latina comment, she was telling the truth?

Um, no.

bagoh20 said...

So does anyone think this 4 day deprogramming of SS will take, as in "She won't think like that anymore."?

hdhouse said...

perhaps if we had a congress that passed better written laws....?

Methadras said...

If this the best that the fraud-in-chief can muster up as a viable candidate for SCOTUS, then we are in for a long road ahead when he starts the downhill spiral in the search for nominees.

The Crack Emcee said...

Ahem.

I think all you fine folks might want to take a look at this. And be sure to click the "Errol Louis" link embedded in it - and don't miss what they've got at the Lyndon Larouche Watch.

I swear, when you're into cultism (as I am, Forrest Gump-like, watching them push this Who's The Head-Nigga-In-Charge? thing) life becomes just a bunch of stale "chocolates" who are determining what the rest of us are gonna get.

"Stale 'chocolates'"? It's a joke in "bad taste"? Get it? Get it?

Whatever. O.K., I'm no good as a funnyman, so I'ma stick to being an asshole. Read the damn thing anyway. It's important.

peter hoh said...

I haven't been able to follow all these Sotomayor threads, but has anyone yet claimed that NPR's coverage of the hearings is biased?

Eli Blake said...

You know, what the HECK is WRONG with Judge Sotomayor (or any other judge) 'legislating from the bench' or using their life experiences to try and make the best ruling they can in a case?

Let's be honest here-- the 'adhere to the law and the Constitution' crap is ridiculous; if the law or the Constitution clearly spelled out what the correct decision was in a case then it would have been decided at a much lower level than a circuit court or the Supreme Court. Any appeals would be immediately dismissed.

Heck, if it were that clear what the law said in regard to a lot of these cases, you wouldn't need a judge at all, a bubble sheet with questions and a computer would be up to rendering a verdict.

But it isn't always that clear. Often we encounter situations today that the framers of the Constitution never envisioned. Trying to parse through the 200 year old writings of Thomas Jefferson or Alexander Hamilton to try and figure out what the founding fathers really meant and would have done about medicinal marijuana or English learner programs in schools is a fools errand (even if the founding fathers hadn't so often disagreed with each other.)

In these cases, where the Constitution doesn't make it clear whether a particular law is in keeping with the Constitution or not then it is up to the SCOTUS to make their own decision. And who is to say they aren't the intellectual equals (especially taken collectively) to Franklin, Hamilton and Jefferson anyway?

Kirk Parker said...

Crack,

No, I'm not going to go read anything from LaRouche. Isn't that why we pay you the big bucks to read it--so we don't have to??? :-)

Aaron said...

Eli

What is wrong with legislating from the bench?

Well, bluntly, you got that question backwards. What RIGHT do they have to do so?

If you are overturning congress based on what the constitution says that is one thing. Then you can say that given that the constitution is supposed to be superior to any mere statute, the constitution trumps.

But where in our constitution does it say that the mere whim of a judge should trump any law?

Of course the exact meaning of the constitution can be indeterminant. But the answer when you can’t be reasonably sure on the constitution’s meaning is not to strike down a law based on your whims, but instead not to strike it down in the first place.

Seriously, the idea that 9 unelected oligarchs should have free reign to veto any law they feel like is servile thinking unsuited for any American. It creates a secular version of the Iranian system: an oligarchy pretending to be a democracy.

Ralph L said...

who is to say they aren't the intellectual equals
No doubt they know more law (since there's more of it to know), but they have less experience with government and the world, having been in courtrooms and offices their whole lives.

Aaron thoroughly nailed your other question. I don't particularly care if women abort their children or not, but I'm opposed to the unaccountable Court usurping the people's power to decide legality through their state governments.

Gary Rosen said...

Wow, C-fudd made a whole lengthy, typically incoherent post without a *single* reference to da Joooos. But he just couldn't stand it. So he came back with a coda, like Columbo, "just one more thing", so he could get in his sweaty, compulsive Jew-baiting. He's gone now, though, beat himself off to sleep again.

hdhouse said...

Ralph L said...
"but I'm opposed to the unaccountable Court usurping the people's power to decide legality through their state governments."

or course negating the need for a federal court system and there for a congress ...are you choking the grape to get to 50 independent states?