Yeah. I Usually Like Newt, But He’s Around the Bend on Sotomayer.

by Little Miss Attila on May 27, 2009

Or, perhaps, simply overstating his case to make a point. (Maybe, as Insty suggests, “enjoying this turnabout thing.”)

I agree that constructionism is the happenin’ judicial philosophy, that race-blindness is rarely to be had by letting race dictate our decisions, and that Sotomayer was clumsy in that statement about wise old chicas or whatever. And I’m not happy about Sotomayer’s hostility to the Second Amendment, but . . . really. It’s like we’ve never encountered a liberal Justice before, and the Republic may not survive this horrendous turn of events.

Althouse:

When a white man gets onto the Supreme Court, it’s because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don’t you see how unfair this marginalization is?

The fact that Sonia Sotomayor is female and Hispanic and that she got the nomination because of that does not nullify or degrade the legal credentials that she also has. It is wrong and unfair to say that it does.

Now, it’s a separate question whether being female and Hispanic is supposed to play a part in constitutional interpretation. Both Obama and Sotomayor have made statements that suggest they believe something that many lawprofs say all the time: That a judge’s background experiences and understandings play a role in answering hard questions of interpretation.

If you don’t think that is true, think deeply about why you disagree. What do you know about the how human mind works that makes you think that our reasoning is abstracted from our real-world context? Don’t tell me that you just feel sure that’s what judges ought to do. The question is what human beings do, not what you wish they could do and would do.

And frankly, I think that if judges could reason about legal texts abstracted from the real world, they would make all sorts of intolerable, ridiculous decisions that would lead us soon enough to replace them with more practical judges. If your wish came true, it would only be temporary.

It’s also a separate question whether Presidents should make Supreme Court appointments based purely on legal credentials. Is there some idea that all possible nominees could be ranked and the President ought to choose #1? Assuming some absolute rank order is possible — and I don’t think it is — would you want to limit him that way? Why?

I suspect that the answer depends on who’s answering the question, and who his/her President is at any given point in time.

But the other side, of course, is being just as absurd: from Gibbs telling us to watch what we say about Sotomayer (!) to those who maintain that she will be the first Justice from humble origins (or even the first Latin justice, for crying out loud). Of course she will be questioned about her philosophy, and rightly so.

And one of the most rugged set of confirmation hearings was the one endured by Justice Thomas. So, you know: don’t be pulling your punches because she’s a girl, either. I mean, Ace isn’t. Though why he’s picking on her cooking, I dunno: can the man put anything together that doesn’t feature hobo meat as an ingredient?

{ 3 comments… read them below or add one }

I R A Darth Aggie May 28, 2009 at 7:58 am

What’s wrong with hobo meat?

But here’s why she shouldn’t be confirmed: as an eeeeeeeevvvvvvvvvvuuuuuuuuuulllllllllllll white male, I have no confidence that she would give me a fair hearing of any grievances I might bring before her.

Reply

Jessica May 28, 2009 at 10:20 am

Here’s what I find funny – white men tell us ENDLESSLY that they arent racist and ARE capable of being fair to non-white-men.

yet, I find it hilarious that whenever a non-white-male is suggested, suddenly THEY are incapable of thinking of anyone other than their own race or gender.

Perhaps now men will understand how women always feel – it’s not revenge, or even a taste of their own medicine, it’s simply reality.

I just find it odd that time and time again, its only women and minorities who “incapable of being fair”…and the only reasoning I can think of is, is because for EONS white men have been EXTREMELY unfair to women and minorities…and they fear payback or retribution.

One day latino’s are going to outnumber white people in America, when that day comes…white people better be deathly afraid…or perhaps they can start playing nice, now…before that happens????

Reply

Darrell May 28, 2009 at 11:22 pm

Yeah, Jessica, it’s all about race and gender. If Nancy Pelosi was a male, we’d all support her 100%. Same with Hillary. I bet you were fair to Dr. Condoleezza Rice, weren’t you? To Michelle Malikin? Bush’s White House counsel Harriet Miers, homeland security adviser Frances Fragos Townsend and communications director Nicolle D. Wallace? Miguel Estrada, and the Democrat’s filibuster? Janice Rodgers Brown? Priscilla Owen? Carolyn Kuhl?

I like your threat, btw. Nice.

Let me re-phrase.
“One day Asians are going to outnumber Latinos in America, and when that day comes…Latinos better be deathly afraid…or perhaps they can start playing nice, now…before that happens????”

Do you see why this is silly? Probably not.

Reply

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