Sotomayor Sinks

As I watch the Sotomayor confirmation hearings it is becoming increasingly evident that “Obama’s Harriet Myers” is just a slip-up away from completely fizzling out. Thanks to the probing questions of the Judiciary Committee’s Republican heroes, the sheer stupidity and unqualified “intellectual shallowness” of Sonia Sotomayor is fully on display.

Mental lightweight Sotomayor should be withdrawing from consideration as a Supreme Court nominee any minute now. Any minute…

The Constitution and the Copyright

Over at RealClearPolitics, Cathy Young pens a sharp piece about a quasi-sequel to Catcher in the Rye written by a Swedish humorist called, 60 Years Later: Coming Through the Rye. A judge has put a restraining order on the novel, in compliance with a copyright infringement claim filed by J.D. Salinger’s attorneys. Young uses this to make some smart observations about the draconian nature of intellectual property laws in the United States and invoked copyright critic Lawarence Lessig’s belief that, “unless copyright law is reformed, it will end up stifling the creativity of a generation.” I think that’s correct, but let’s also remember that overbearing copyright laws like the DMCA stifle technological innovation and that stringent patent laws prevent things like medical patients buying life-saving pharmaceuticals at reasonable prices.

But corporate copyright holders are powerful and have lots of money that they share with congresspeople who also like power and lots of money. That’s why every time Mickey Mouse’s copyright is about to expire, congress seems to pump out a new, stricter sets of laws and, whadya know, Disney still owns the rights to Mickey. While congress changing its mind isn’t very likely, it is always important to note that current copyright laws are pretty contrary to the founding fathers’ wishes. From Article 1, Section 8 of the Constitution the founders write:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The Commerce Clause, at least in its current application, would certainly give congress jurisdiction to pass intellectual property laws, so Constitutional objections probably are a waste of time. Still, the founders were right and current copyright enthusiasts are wrong. Our current intellectual property laws are misguided and this should be repeated again and again.

Newsflash: ‘Strict Constructionists’ Really Just Strict Republicans

Yesterday in a 5-4 decision, the Supreme Court ruled that elected judges must disqualify themselves from hearing cases involving a person who contributed a significant sum of money to the judge’s campaign coffers. The case comes amidst the Sotomayor “judges as policymakers” hullabaloo and what’s interesting is Chief Justice John Roberts’ dissenting opinion makes clear reference to the policy implications of the court’s decision. Matt Zeitlin explains:

[Roberts] then goes on to list 40 possible sources of bias that state courts would have to consider — with no guidance from the Supreme Court — and argues that because the Court’s decision could open up a Pandora’s box of bias claims, “This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”

Now, these are perfectly fair points to make and the issues that Roberts raises are something that the Court should consider. But you’ll notice that they have nothing to do with the letter of the law or the due process clause specifically. Instead, Roberts is pondering the policy implications of the majority’s decision and coming to the conclusion that those outcomes would be negative ones.

This isn’t really surprising for judicial observers but it is something that always bears repeating. With the sometimes-exception of Justice Kennedy, the Supreme Court is an extremely partisan body. The Rehnquist Court was no different. Take the decision in Bush v. Gore: There you had five supposedly state’s rights conservatives forcing the state of Florida to stop counting ballots, making conservative George W. Bush the de facto president. The dissenters were four liberals siding — not with the federal government, as their judicial philosophies would seem to imply they would — but with the state of Florida. That is, none of the nine justices rooted their decision in explicit Constitutional mandates or even meaningfully on past precedent. Rather, the Republicans voted like loyal Republicans and the Democrats voted like loyal Democrats.

All this talk about “strict constructionists” and “activist judges” makes for good talking points, but it has little to do with how the court operates. When conservatives oppose Sonia Sotomayor for being a judicial activist, they are for all intents and purposes opposing her for being a Democrat. That may or may not be a reasonable action, but it should be understood for what it is.

Sotomayor a Lackluster Wordsmith?

Last week, Stephanie Mencimer penned a smart Mother Jones article on Sonia Sotomayor’s way with words. Although impressed with her intellect and accomplishments — and still confident in her ability to do the job — Mencimer worries that her prose may not be on par with some of the court’s heavy weights:

The court’s influence and lasting legacy is what it commits to paper. Sotomayor may be a force of nature in the courtroom, where she’s said to shine, but it’s hard to imagine her going head to head in print with, say, Antonin Scalia. The conservative justice is the master of the wicked one-liner and, while something of a smart aleck, he influences the public debate on so many issues because of his writing—whether he’s in the majority or dissenting and whether he’s right or wrong. Scalia’s opinions are cited in leading constitutional law casebooks more than any other sitting justice. In the 2002 case Republican Party v. White, for instance, he quipped, “campaign promises are—by long democratic tradition—the least binding form of human commitment.”

Because of the subjective nature of jurisprudence, it is incredibly important to have well-written opinions; a precedent articulated forcefully will be much more persuasive when future courts look towards the ruling. In that regard, you would expect that this would make conservatives more receptive to her nomination while giving liberals some pause, but of course it won’t play out that way.

On a tangential note, I will say I’m a bit surprised that justices still write their own opinions. Nobody minds that the president has a team of speechwriters and I doubt anyone would be shocked to learn that most Senators and Representatives don’t author their floor speeches, and none of them write their press releases or constituent letters. Presumably respected justices have clerks with quality phrase-turning skills, so why don’t they get them in on drafting the language of their judicial decisions?

A Quick Thought

Texas Republican Sen. Jon Cornyn on Gingrich’s and Limbaugh’s relentless attacks on Sonya Sotomayor:

“Neither one of these men are elected Republican officials [and] I just don’t think it’s appropriate and I certainly don’t endorse it. I think it’s wrong.”

Elected Republicans are obviously fearing a female and Latino backlash and trying to figure out how to approach the Sotomayor nomination. I think that ultimately some Republicans on the Hill who may have opposed her are going to decide that they cannot afford to be seen as contributing to these racist and sexist attacks and are going to (a) go soft on her in the hearings and (b) eventually vote in favor of confirmation. The base’s biggoted bullshit is counterproductive to the GOP’s future electoral success and will likely prove to have been counterproductive in impeding Sotomayor’s nomination. A circular firing squad at its most entertaining.

Making Conservative Democrats Squirm

The LA Times reports on the long road ahead for Republicans attempts to stop Sotomayor’s confirmation:

They are spotlighting her decisions on wedge issues such as gun rights that could put pressure on Democrats from conservative states. And they are preparing for confirmation hearings that they hope will spotlight major differences between the political parties’ legal philosophies. [...]

But other conservative activists see lines of attack that would make a filibuster unnecessary: They aim to paint a portrait of Sotomayor to make conservative Democrats squirm, eroding support from within Obama’s party.

Really? My suspicion is that the number of Senators who have ever lost re-election based on their “party’s legal philosophy” or have been defeated because of their Supreme Court confirmation vote hovers around zero. The GOP can flip a coin: heads they decide to piss off the base and support Sotomayor and she gets confirmed. Tails, they decide to please their base and oppose Sotomayor (while pissing off Latinos everywhere) and she gets confirmed anyway. Those are the two options and any pipe dreams about sinking Sotomayor’s nomination are just that.

Sotomayor Smears v. The Truth

Rightwingers have been dropping mad diss tracks smack talkin’ Sonia Sotomayor. Smart people have given some pretty convincing rebuttals that you should hear. Unfortunately, I don’t have a whole lot of original thoughts to add, so what can I do? I know: aggregate! For an awesomely convenient list of criticisms and responses concerning our new Supreme Court nominee, meet me below the fold…

Requiem for “I Have a Dream”

I realize that most folks are still processing and reacting to the California Supreme Court’s decision, so I thought I would take a moment to reference the landmark decision in Loving v. Virginia, as the decision in the case goes straight to the heart of the argument for gay marriage.  Chief Justice Warren writes for the majority:

“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed.”

These words were written at a time when only 30% of the public supported the idea of interracial marriage, and if a referendum such as Prop 8 had been held then interracial marriage would almost certainly have been banned all over again.  Indeed, part of the reason we have a system of judicial checks is to protect minorities from the whims of the 50%+1 majorities.

Dr. King once stated that he dreamed of a day when a man would be judged on the content of his character.  Forty-six years later, we are still dreaming for that day.

Sotomayor

Sonia Sotomayor will be Obama’s Supreme Court nominee. A friend quips about how Republican opposition should really ingratiate the GOP with Hispanic and female voters. And he’s right – there’s, unsurprisingly, a real level of political acumen in the move.

Anyway, it will be nice to get some diversity on the court, though I don’t have a whole lot more to say than anyone else does. More soon…

Updated with chatter from the sphere. From the progressives:

Scott Limieux at TAPPED opines:

It’s a good, solid pick. Not a home run like Pam Karlan would have been, but I also don’t think she’ll be another Stephen Breyer; I see another Ruth Bader Ginsburg at worst. For me, she would have been #2 among the viable candidates after Diane Wood, and I don’t think Wood is clearly more liberal; they’re within a range in which appellate court records don’t reveal enough information to make firm judgments.

Atrios sez:

…and of course Drudge is highlighting TNR’s “Sotomayor is a stupid bitch according to my anonymous friends” article.

Turned the teevee on…”liberal political activist in the first order.” According to a former clerk for Clarence Thomas. President Gingrich has not weighed in yet.

Glenn Greenwald brings the ruckus:

At his best, Obama ignores and is even willing to act contrary to the standard establishment Washington voices and mentality that have corrupted our political culture for so long. His choice of Sotomayor is a prime example of his doing exactly that, and for that reason alone, ought to be commended.

And from the con blogs:

Ramesh Ponnuru calls Sotomayor:

Obama’s Harriet Miers.

RedState’s Erick Erickson mocks:

Conservatives rejoice. Of all the picks Obama could have picked, he picked the most intellectually shallow.

Seems that liberals like her. Conservatives don’t. Who woulda thunked it?

Empathy? We Don’t Need No Stinkin’ Empathy! (Or Do We?)

Tomorrow, the White House will name Justice Souter’s Supreme Court replacement. Then cable news pundits will spend hours discussing the President’s use of “empathy” earlier this month. Over at Donkeylicious, Neil makes a good and very Donkeylicious point about the word:

An ability to understand other people’s lives — what it’s reasonable to expect of them, what will constitute an undue hardship, why homosexuals don’t have sex with women — is important to making the kinds of decisions that Supreme Court justices actually end up making. Empathy is a big part of how we understand people’s lives and come to know these kinds of things.

While conservative activists might be happy if Souter’s replacement was a PC performing “Ctrl+F” on a Constitution PDF to see what’s explicitly there and what’s not, that isn’t how real life jurisprudence works. It’s application demands thoughtful interpretation and that necessitates a human touch. A judge needs some kind of worldly lens to understand how Due Process and Equal Protection matters play out. The realization that pretending to drown a prisoner is torturous and therefore cruel or unusual shouldn’t be controversial. Freedom and privacy aren’t just abstract concepts–one needs a bit of life experience to understand and apply them. And all of these things require empathy!

There’s a legitimacy matter as well. Just as you would want a diverse court to be making decisions affecting a diverse populace, you want a populace to believe that that court understands their feelings or plight. If the court mocks a woman for getting pregnant or if justices had laughed and taunted Al Gore for losing Florida, there’d be big problems. Surely, empathy plays a legitimacy role in less exaggerated circumstances too.

Ultimately though, this manufactured “empathy” controversy is irrelevant. Unless Obama does something really stupid, the whole course is pretty predictable: a Democrat will be nominated tomorrow, conservatives will bitch and send out fund raising letters, the nominee will eventually be confirmed, and the makeup of the court will stay largely the same.