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Should Repubs. Fight Sotomayor? Left Bloggers say No; Righties Split:

A special poll of bloggers from The National Journal asked "Would it be politically smart for Republicans to try to block the confirmation of Judge Sonia Sotomayor?" Among the Left bloggers, the unanimous answer was "No." On the Right, 53% said "No" and 47% said "Yes."

I voted "Yes," and wrote: "The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences. [And, I should have added, neither did the Dems. who filibustered Miguel Estrada, who, like Sotomayor, is a Hispanic with an impressive life story.] Sotomayor is on the wrong side of fairness, empathy, the Constitution and the American people in regards to firearms ownership (Maloney v. Cuomo; United States v. Sanchez-Villar); wealthy people using the government's eminent domain power to extort money from small business (Didden v. Village of Port Chester); and a racial spoils system for government employees (Ricci v. DeStefano)."

a_non (mail):
Speaking as a Democrat, I would like to commend you on your shrewd and detacted reading of public opinion and I encourage the Republicans to follow your advice. I look forward to seeing Rep. Tancredo and Sen. Inhofe on the Sunday shows this week.
5.27.2009 6:12pm
a_non (mail):
ugh... "detached"
5.27.2009 6:13pm
Justin (mail):
Your elaboration is a non sequitor to the question being asked, fwiw.
5.27.2009 6:14pm
Downfall:
What Justin said. Whether opposing something is politically smart-- what the question explicitly calls for-- has at best a tenuous connection with the merits of that which is being opposed.
5.27.2009 6:26pm
Oren:
In regards to Maloney v. Cuomo, I don't see a circuit court has the right to reverse a Supreme Court precedent (even one whose doctrinal basis in entirely upended). The policy of (vertical) stare decisis -- stand by the decision is best explained by the 9CA here:


Allegheny General Hospital v. NLRB, 608 F.2d 965, 969-970 (3rd Cir. 1979) (footnote omitted). Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere -- "to stand by and adhere to decisions and not disturb what is settled. " Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi -- "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides -- for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.


The second circuit was just not at liberty to revisit the settled matter that the 2A is not incorporated against the States by the 14A. Whether or not that is inconsistent with the current incorporation doctrine (obviously yes) and how to resolve that matter is up to the Supreme Court.

[ Aside, of course I support incorporation and I furthermore think it's a dead ringer that the Court will do so. The question is whether the Circuits have the right to do so is entirely separate from what the Supreme Court should do -- "vertical" stare decisis is a lot different from "horizontal" stare decisis.]
5.27.2009 6:26pm
SecurityGeek:
I too recommend Kopel's advice to any RNC strategists reading this. Please make sure to prepare your Senators to refer to her as "Maria" or by whatever Latina name pops into their head at the moment, especially if that name belongs to a member of their illegal household staff. Hispanic people especially love it when old white men confuse them for famous dancing Puerto Ricans from musical theatre.
5.27.2009 6:26pm
krs:
Justin, I'm curious about your response.

"The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences" seems clearly responsive to the question whether it would be politically smart for Republicans to try to block the confirmation of Judge Sotomayor.

The remainder of the response seems to be based on the unstated premise that it's politically smart to oppose nominees who are on the "wrong" side of the issues listed, but I don't think the premise is so farfetched that the response is a nonsequitur.
5.27.2009 6:27pm
ruuffles (mail) (www):

Please make sure to prepare your Senators to refer to her as "Maria" or by whatever Latina name pops into their head at the moment, especially if that name belongs to a member of their illegal household staff.

Not that I think Huckabee knew this, but a picture of Sotomayor's yearbook page circulating in the media has her name as "Sonia Maria Sotomayor."
5.27.2009 6:28pm
Federal Dog:
People should raise whatever concerns they have about her, then vote. I do not consider her appointment the worst thing that could happen. She is a mediocrity who has been named based on race and gender. She lacks the wherewithal to effectively counter analysis and insight by people far more skillful then she is.
5.27.2009 6:29pm
SecurityGeek:

Not that I think Huckabee knew this, but a picture of Sotomayor's yearbook page circulating in the media has her name as "Sonia Maria Sotomayor."


I think it's just as likely that Huckabee is still subconsciously angry for understudying Tony in high school.

"And suddenly that name
Will never be the same
to meeeeeeeeeee!"
5.27.2009 6:34pm
Owen Hutchins (mail):
Please, you don't have to worry about being labeled "racist" or "sexist"; most of us realize that your real objection to her is that Obama nominated her. It's just hard to get past the point that it was George HW Bush that nominated her for the Federal bench to begin with, and that the Senate has twice confirmed her appointments already, and yet now the Republicans have problems with her.
5.27.2009 6:35pm
krs:
She lacks the wherewithal to effectively counter analysis and insight by people far more skillful then she is.

This is true of most people in most analytical pursuits. When your only tool is analysis (and arguably rhetoric), less skillful people usually fail to effectively counter more skillful people.
5.27.2009 6:37pm
Oren:
David, reading all those opinions, not just Maloney, I see a jurist constrained by (very shitty) precedent rather that one with all the personal views that you ascribe to her. On what basis do you conclude that those are, in fact, her personal views?

There seems to be a very strange conception of what the inferior courts are meant to do floating around this board -- as if they were entitled to anticipate new Supreme Court doctrine and preemptively overrule standing precedent because they think (correctly even) that the Supreme Court is likely to do so soon.
5.27.2009 6:39pm
paul lukasiak (mail):
insofar as the Democrats lost control of the senate in the 2002 election (after the initial blockage of Estrada's appointment), and didn't do so well in 2004 either, its rather cavalier to say that the Dems sustained no damage as a result of their opposition.

Moreover, the circumstances are entirely different now. While I agree that the Estrada nomination fight probably didn't do signficant damage to the Democrats, that is probably due largely to the lower profile of the Estrada nomination, and the overall positive standing of the Democratic Party among Hispanic voters prior to the Estrada nomination.

Sotomayor has a much higher profile -- so the impact of any missteps is likely to be greater. But more importantly, the GOP's overall reputation among Hispanics is pretty damn low already thanks to the manner in which the GOP demagogued the undocumented immigrant issue for the last couple of years. Thus, it may not matter much in terms of short term Hispanic opinion of the GOP. But by angering the Hispanic community on the Sotomayor question, the GOP could easily wind up turning millions of Hispanics into "lifetime Democrats" who won't even consider supporting GOP candidates for decades to come.

So I really do hope that the GOP goes after Sotomayor with both barrels. Keep trying to present her as some kind of Affirmative Action candidate who is not qualified to serve on the Supreme Court -- the fact that she has more experience on the federal bench than any nominee for SCOTUS for at least the last 70 years is something that everyone in the Hispanic community will be aware of, and efforts to cast her as unqualified will be seen as a reflection of right-wing bigotry that it truly is.
5.27.2009 6:41pm
EPluribusMoney (mail):
Does anyone know if appointing a Puerto RIcan will really please "the Hispanic Community"? In my experience there is a lot of national pride and Mexicans look down on Puerto Ricans and vice versa. So are Mexicans, Peruvians, Spaniards, etc. happy about this? Or are they mad that their own didn't get the nod and probably won't for a long time now.
5.27.2009 6:45pm
krs:
E. Pluribus, see this post from yesterday.
5.27.2009 6:49pm
paul lukasiak (mail):
Does anyone know if appointing a Puerto RIcan will really please "the Hispanic Community"?

yes. the overall hispanic community is very pleased with her nomination. In fact, except for the 22%'ers, everyone is happy with her nomination.
5.27.2009 6:54pm
cboldt (mail):
-- In regards to Maloney v. Cuomo, I don't see a circuit court has the right to reverse a Supreme Court precedent --
.
Holding that a state may not prohibit weapon possession at home would not work a reversal of the holding of Presser (a state law that forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not infringe the right of the people to keep and bear arms), or Cruikshank (the 2nd amendment does not support an criminal indictment averring non-government action against the 2nd amendment)
.
On topic, I think a certain amount of objection to Sotomayor will be a benefit to the GOP, and a relative absence of objection would be politically damaging to the GOP. Sotomayor's elevation to the Circuit Court was opposed by 29 Republicans, and a similar degree of objection is politically appropriate.
5.27.2009 6:54pm
richard1 (mail):
My wife was born in Mexico and very proud of her Mexican heritage. She's thrilled that Sotomayor was appointed. The same with all of her relatives. And if you listen to Spanish language radio in Los Angeles, which has very few Puetro Ricans, there is overwhelming support for the nomination.
5.27.2009 6:57pm
Gunther (mail):
I'm Mexican and I don't look down on on those of Puerto Rican descent. In fact, I don't look down on anyone based on race, creed, color, national origin, sex, political or affiliation. You can't hit this dog with that stick.
5.27.2009 7:03pm
Sarcastro (www):
Does no one remember the parable of the Miers and the Alito?
5.27.2009 7:06pm
SecurityGeek:
I'm not sure who pointed it out first, but I think the observation that Hispanic community organs (political groups, newspapers, etc...) are generally Democracticly aligned these days will also add to the impact of any overreach on behalf of Republicans.

Also, was it so necessary for the GOP to chime in on the first news cycle for that they had to go to war with such inane talking points? At least Kopel (uncovincingly) cited some of her decisions. Having Republican activists on CNN all day spewing nonsense that could apply to anybody they don't like (activist! socialist! affirmative action! mediocre!) doesn't improve their credibility when going to the wall later on.

Seriously, they have something like 2.5 months. Wouldn't it be smarter to say something like "we should examine her writings for examples of XXX" and save the spittle for after the oppo researchers are done reading 17,000 pages of rulings? Wouldn't it be much more dramatic to drop some controversial statement on her during the hearings, than to bring them up in a completely transparent ploy to piss on the news cycle?

Actually, don't take my advice. Listen to Kopel, her name is spelled M-A-R-I-A, and she's Mexican.
5.27.2009 7:09pm
Jiffy:
I don't see how conservatives can make a big deal of the importance of judges following the law and at the same time complain about Maloney.

Let me rephrase that: I don't see how conservatives can persuasively make a big deal of the importance of judges following the law and at the same time complain about Maloney.
5.27.2009 7:21pm
josh bornstein (mail) (www):
The long answer to the question asked is, "Yes, it would be politically smart." However, I expect that it would be beneficial for Dems, so it's not surprising that a significant number of liberals and moderate democrats are encouraging conservatives to oppose her nomination.

I see this as almost a non-lose proposition for Democrats. Obama will get residual good-will from the nomination (assuming, of course that he never appears to throw her under the bus if her nomination goes south for some reason). If the Republicans somehow do derail her, I hold out hope that Obama will have the stones to nominate a true liberal justice (well off to the left, in Ginsburg territory). We have 4 justices that are reliably very very conservative, and good for them. A bit more balance, with a few more *young* ultra-liberal justices would be nice. And if her nomination fails, I expect that Republicans will suffer in the eyes of the public, other than their existing base, of course.
5.27.2009 7:22pm
M N Ralph:
Please, please, please continue to question her intelligence, competency, call her a racist, and try to filibuster her. I wouldn't have thought it possible that the Hispanic vote would come close to the splits Democrats regularly achieve with the black vote, but I failed to take into account who is running the Republican party.
5.27.2009 7:27pm
Bruce Hayden (mail):
What has to be remembered (and pointed out when necessary) is that President Obama voted against both Justices Robert and Alito on purely political grounds. Then, the Republicans should attack her as extremist, racist, and lacking in judicial temperament. But in the end, some of the Republicans are going to vote for her.

The problem for the Republicans is that they can't attack President Obama directly, since he still maintains decently high ratings. But attacking her attacks him, esp. if he can be portrayed has having picked her to get a "two-fer", and thus filling such an important post through affirmative action (regardless of her real qualifications). And this feeds into the meme that Obama got the Presidency essentially through his color, and that he (along with the judge here) is deep down an extremist, etc.
5.27.2009 7:32pm
Oren:
cboldt, you want to try to rationalize how Didden could have come out differently and still be consistent with Kelo?
5.27.2009 7:34pm
cboldt (mail):
-- you want to try to rationalize how Didden could have come out differently and still be consistent with Kelo? --
.
Short answer: No.
Brief explanation: I haven't studied either case.
FWIW: I haven't ever expressed an opinion on either case.
5.27.2009 7:38pm
RPT (mail):
The empathy/ethnic appeal thing is so '80's (Thomas and Scalia) and '90's (Alito). The new thing is empathy-less robots. Princeton and Yale are just so dumb. And those assertive "tempermental" women; what's a conservative guy to do?
5.27.2009 7:40pm
ArthurKirkland:
I hope Republican Senators vote as their consciences incline and would support those who do so (subject to the caution that they should expect to be held accountable for any vote).

I also hope that at least some of those who oppose this nomination regularly refer to the nominee as "senorita" or "Maria" or "the judge-ita" throughout the confirmation process.
5.27.2009 7:40pm
Bruce Hayden (mail):
I see this as almost a non-lose proposition for Democrats. Obama will get residual good-will from the nomination (assuming, of course that he never appears to throw her under the bus if her nomination goes south for some reason). If the Republicans somehow do derail her, I hold out hope that Obama will have the stones to nominate a true liberal justice (well off to the left, in Ginsburg territory). We have 4 justices that are reliably very very conservative, and good for them. A bit more balance, with a few more *young* ultra-liberal justices would be nice. And if her nomination fails, I expect that Republicans will suffer in the eyes of the public, other than their existing base, of course.
First, the Republicans are not going to derail the nomination. Enough are going to vote for her for political reasons that they won't have enough votes to filibuster the nomination. The sole purpose of beating her up is to tar the President.

Also, you are positing "good will", but that will only fly on the left, where Obama is already strong. The white blue collar workers (and their families) are likely to be less impressed with a nominee who appears to be an affirmative action hire here, and maybe quasi-racist too boot.
Please, please, please continue to question her intelligence, competency, call her a racist, and try to filibuster her.
I don't think that very many are going to challenge her experience or her credentials. And they aren't going to filibuster her, since they don't have the votes to make it work. But I think that you underestimate how well attacking affirmative action and reverse discrimination works in the white working class, which is another critical Democratic demographic. Keep in mind that they are the ones who suffer from the New Haven type of reverse discrimination, and they know it.
5.27.2009 7:41pm
jab:
Wow, as a liberal Democrat, I just love the
new Rushublican Party... More, please.
5.27.2009 7:47pm
Oren:


Brief explanation: I haven't studied either case.
FWIW: I haven't ever expressed an opinion on either case.

Heh, sorry. The levity didn't come out right.

Maybe DK can explain, since he has expressed an opinion that Sotamayor is hostile to property rights instead of following the on-point precedent in Kelo (which is hostile to property rights).
5.27.2009 8:04pm
Brian G (mail) (www):
I think anyone who speaks against this woman is obvioualy racist. Her credentials are beyond reproach. ANd let's face it, it is way past time we have a Hispanic woman who can speak and advocate for all Hispanics in this country in the Supreme Court. I suspect she will play an important role in ending America's disgraceful bigotry against undocumented immigrants, homosexuals, and women. Plus, with her on the Court, she can make good rulings like, for example, she can now order that New Haven pass a critical mass of blacks on the fire exam so that they can be well-represented. And, she can force them to meet a critical mass of minoritites in women in many other areas. This ain't a whote man's world anymore. get used to it right-wingers.
5.27.2009 8:26pm
Ben P:

What has to be remembered (and pointed out when necessary) is that President Obama voted against both Justices Robert and Alito on purely political grounds. Then, the Republicans should attack her as extremist, racist, and lacking in judicial temperament. But in the end, some of the Republicans are going to vote for her.


While I understand this argument intellectually, I don't really get it.

Of course judicial philosophy is relevant, but the Supreme Court in particular is so intricately tied in with policy decisions that I think it's almost impossible to separate political concerns from "Judicial" ones.

It necessarily follows that I think it's perfectly acceptable for the Republicans to oppose Sotomayor simply because they don't like her politics. But I don't really hold it against Obama (or any other dem for that matter) for voting against Roberts or Alito because they thought they would make poor policy decisions.
5.27.2009 8:38pm
Bored Lawyer:
First of all, the Republicans should realize that no matter what they do, she will almost certainly be confirmed. So whatever they do is just to fulfill their duty of vetting her and for politics.

Second, there is some political gain to be made from opposing her -- so long as you don't look like a buffoon in doing it. When push comes to shove, most Americans prefer a judiciary who view themselves as "umpires" not "empathists" and it pays to remind them that voting for Obama has consequences in this realm.

Third, the Ricci case is probably a great point of attack. It's about affirmative action, which, as others have pointed out, is something the Democrats are vulnerable on. And it was handled in a political abusive manner. No less than Judge Jose Cabranes -- a fellow member of the Second Circuit and a fellow Latino -- detailed the shenanigans involved in the whole affair, and criticized the perfunctory manner in which it was dealt.

That is a good basis to question the nominee. Do you agree with Judge Cabranes? Why is he wrong?
5.27.2009 9:27pm
bluecollarguy:
"I think anyone who speaks against this woman is obvioualy racist. Her credentials are beyond reproach. ANd let's face it, it is way past time we have a Hispanic woman who can speak and advocate for all Hispanics in this country in the Supreme Court. I suspect she will play an important role in ending America's disgraceful bigotry against undocumented immigrants, homosexuals, and women. Plus, with her on the Court, she can make good rulings like, for example, she can now order that New Haven pass a critical mass of blacks on the fire exam so that they can be well-represented. And, she can force them to meet a critical mass of minoritites in women in many other areas. This ain't a whote man's world anymore. get used to it right-wingers."

Do you write for the Onion?
5.27.2009 9:39pm
ReaderY:
Today's New York Times article suggests that Sotomayer might turn out to be another Souter, an unknown quantity who may turn out to have views completely different from what people expected. It points out that Hispanic Catholics are the members of the Democratic coalition most likely to be opponents of abortion, or at least to regard opposition to abortion as a legitimate political position in a way may other members of the Democratic coalition do not.

If its intent is simply to lull Republicans into dropping opposition, it's quite a piece of propaganda. Wonder what validity there might be to the speculation.
5.27.2009 9:49pm
Where'sLuntz (mail):
The person that decided empathy was the right scare word to use in the talking points to oppose judges needs to have his head examined. To say one is on the "wrong side of empathy" because one has empathy is not exactly a winning way of putting things. Next thing you know folks are going to be complaining about how she does too much for victims or doesn't hate poor people enough. That will really swing some minds. Someone call in Frank Luntz to come up with some new talking points: maybe call it "Enhanced Empathic Techniques."
5.27.2009 9:53pm
bluecollarguy:
John McCain got way to the left of his base on the question of illegal immigration and amnesty. He underperformed President Bush in the Hispanic community by large numbers.

The Democrats crucified Miguel Estrada who was nominated by President Bush in 2001 and filibustered his nomination in 2003. From the time of his nomination in 2001 until the next national election in 2004 Hispanic Party registration remained essentially the same.

President Bush may have gotten 5 or 6 points more from Hispanic men in 2004 than 2000 but the female Hispanic vote stayed constant. My guess is that increase in the male vote is attributable to Bush's tough line on terror rather than on what the Democrats did to Miguel Estrada.

The confounding factor here is the MSM I would think. Their coverage of the filibuster of Miguel Estrada will pale compared to the ravings that will come forth should the Republicans somehow attempt to filibuster Sonia Sotomayor.

So basically the answer to your question is I dunno.
5.27.2009 10:05pm
http://volokh.com/?exclude=davidb :

When push comes to shove, most Americans prefer a judiciary who view themselves as "umpires" not "empathists" and it pays to remind them that voting for Obama has consequences in this realm.

I think that this statement, which appears to be straight from a right-wing echo chamber, is absurd.

Your theory, as I understand it, is that by opposing this popular nomination, the Republicans will successfully "remind" the majority who voted for (and still favor) Obama that horrific "empathy," rather than their preferred "umpiricism," is what we can expect from Obama nominees?

Oh yeah, THAT observation will teach 'em that they should have voted for McCain.

Boy, will their faces be red.
5.27.2009 10:31pm
Constantin:
I don't think it makes a bit of difference whether the GOP opposes her. They'd suffer if they tried a filibuster because the public doesn't like obstructionism in general (Thune def. Daschle) but past that, it's just about irrelevant.

Almost six in ten Americans can't identify a single justice on the Supreme Court. The highest ID rate for any single justice is something like 25%. I really don't think people care, in general. The exception to this is that I figure minority groups might be a bit extra excited about her selection, and Reagan-Democrat types might be turned off at the whiff of tokenism coming from Obama, who was supposed to be above that kind of thing.

And for the excludedavidb guy, you're flat wrong. Polls done since Souter retired show a more than 2-to-1 public preference for justices who decide cases based on adherence to the written law rather than on notions of "fairness", which is about as complex an understanding as the public is going to have of the "empathy" thing.
5.27.2009 11:00pm
Sarcastro (www):
It's either the law or fairness, cause you can't have both!

Choose, but choose wisely!
5.27.2009 11:11pm
krs:
I can't tell if Brian G's joking or not.
5.27.2009 11:18pm
Ben P:

And for the excludedavidb guy, you're flat wrong. Polls done since Souter retired show a more than 2-to-1 public preference for justices who decide cases based on adherence to the written law rather than on notions of "fairness", which is about as complex an understanding as the public is going to have of the "empathy" thing.


And you don't see a contradiction in a public that universally can't name a supreme court justice (and I assume much less describe what sort of stuff the Supreme Court actually does) and taking seriously a poll of the same public that purports to show public opinions of specific judicial decision making processes?
5.27.2009 11:46pm
Constantin:
And you don't see a contradiction in a public that universally can't name a supreme court justice (and I assume much less describe what sort of stuff the Supreme Court actually does) and taking seriously a poll of the same public that purports to show public opinions of specific judicial decision making processes?

That's actually my point. The best the public is going to understand is that one side says justice is blind and the other side talks about empathy and wise Latinas. It's a little more complicated than that, but it'll be what almost everyone takes away from it. Indeed, it already is (absent the new racialist aspect). That was my point in citing those polls to refute the earlier guy's glibness.
5.28.2009 12:09am
second history:
The Democrats in 2003 feared Estrada because they saw his appointment as a stepping stone to the Supreme Court, and forsaw the political problems of opposing the first Hispanic Supreme Court Justice. Sotomayor got the Estrada treatment when she was nominated to the Second Circuit, and she was held up by the Republicans for a year before a vote was scheduled, because Republicans forsaw the political problems of opposing the first Hispanic Supreme Court Justice.

The Democrats avoided their hard vote; the Republicans are facing theirs.
5.28.2009 1:25am
M N Ralph:

But I think that you underestimate how well attacking affirmative action and reverse discrimination works in the white working class, which is another critical Democratic demographic. Keep in mind that they are the ones who suffer from the New Haven type of reverse discrimination, and they know it.


You make a good point about affirmative action and white working class workers. If this were a debate on an affirmative action law, then Republicans might get the better of it politically--any Democratic gain in Hispanic voters who might benefit from affirmative action would be offset by Democratic loss in the white, working class who would lose. But, it's not a straight affirmative action debate and I don't think Republicans will be able to frame it that way in the media. It's a debate about a particular Hispanic judge. Hispanics will not see Republican attacks on Sotomayor not as prinicipled opposition to affirmative action but as anti-Hispanic. White, working class folk may be sympathetic to the argument, but by and large won't really care. There's an assemetry in interest working in the Democrats favor. Hispanics will be following the argument more and will be much more angered at Republicans than white working class folks will be angereed at Democrats.
5.28.2009 1:33am
Andrew J. Lazarus (mail):
The Republicans, for empathy in Justices, before they were against it.
I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He's also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require.
That's Bush Sr., on Clarence Thomas.

Don't you Republicans start to resent being sent to the front lines with weapons that backfire?
5.28.2009 1:35am
Jack C:
Bush was describing Thomas as a person not as a judge when he was talking about his emphaty, sense of humor etc. He never said he should use that emphaty when deciding cases. Also, take notice of the last sentence in that paragraph.
5.28.2009 3:49am
Public_Defender (mail):
I agree that political concerns are fair game in judicial confirmations, so Republicans have every right to fight her nomination. The check against abuse of political concerns is politics, so Republicans should be careful.

As to the racial issue, like Chief Justice Roberts, Stephen Colbert, and a number of the commenters here, I can't see race now that our countries racial problems have been solved. Like them, I agree that if we just say that racism is over, it's over, so we should stop talking about it. In fact, it's racist to even argue that some people are still racist.
5.28.2009 6:26am
Ron Mexico:
But Jack C, the last sentence says he's committed to deciding cases based on fairness! THat's not how my law requires it---we should impeach this radical firebrand!
5.28.2009 3:25pm
http://volokh.com/?exclude=davidb :

And for the excludedavidb guy, you're flat wrong. Polls done since Souter retired show a more than 2-to-1 public preference for justices who decide cases based on adherence to the written law rather than on notions of "fairness", which is about as complex an understanding as the public is going to have of the "empathy" thing.

Well, that proves it then. You're right, it's important for the Republicans to "remind" voters, through their relentless opposition to SS, that this horrific, indeed dangerous, nomination of an allegedly empathetic Hispanic judge is the sort of thing they can expect from Obama.

Perhaps you could add an "I told you so" from time to time. Or mention a few views of your party on immigration matters.

Let me know how this works out.
5.28.2009 5:01pm
George Liebmann (mail) (www):
I find it remarkable that people who call themselves conservative and who profess to believe in judicial restraint favor the application of Heller to the states. I happen to think that Heller was rightly decided, but only as respects the Federal Government. The scheme of our Constitution and the Bill of Rights was that the states should retain police powers, e.g. Federalist 45. The limitations of the Constitution, including the Second Amendment, were directed against the re-creation on American soil of a standing army as national police on the model of the Earl of Stafford's Thorough Dictatorship or Cromwell's New Model Army. If the states are to effectively wield police powers over criminals with guns, their actions in doing so cannot be rendered subject to the discretion of the federal courts. Firearms restrictions in suburban and rural areas are as a policy matter unwise; policing costs would be much greater, as they are in England, if citizens were unarmed. In urban areas, this is almost certainly not true. Firearms restrictions like the Sullivan Law in New York City have only limited force when not enforced, but when seriously enforced with stop-and-frisk policing, as under the Giuliani and Bloomberg administrations, they can have a major effect indeed. If states and cities are to be disabled by invented constitutional restrictions from addressing violent crime, we will see enhanced demand for federal enforcement. No thoughtful person can welcome enhanced federal policing, let alone the ministrations of the newly created Northern Command, which has excited little interest from the NRA and its friends.

Finally, I find it hard to understand how the Second Amendment can be deemed incorporated in the Fourteenth, whose framers, as Justice Harlan (2) clearly demonstrated, did not intend to enfranchise the freedmen, let alone arm them. I have read the debates on the Fourteenth Amendment. There is not a word in them to suggest that the states were being impaired in their ability to regulate their militias, organized or unorganized.

Sotomayor on this issue is not only a good New Yorker but a good constitutionalist. She is also, let us not forget, an alumna of the New York County District Attorney's office, a background not shared by the conservative justices, who in their career choices as well as their enthusiasm for preemption for 'good' causes have shown the same attachment to localism as the courtiers of Louis XIV. None of them have deigned to dirty their hands in state or local government.

George Liebmann
5.28.2009 8:39pm
cboldt (mail):
-- I find it remarkable that people who call themselves conservative and who profess to believe in judicial restraint favor the application of Heller to the states. --
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It's an "old school" attitude, also on display in the Presser case. Even if there was no 2nd amendment, neither the states nor the feds have the power to prevent a free people from keeping and bearing arms.
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Now, if the people decide they don't want freedom, by all means they deserve to be disarmed.
5.28.2009 8:58pm
ChrisTS (mail):
Arthur K: I also hope that at least some of those who oppose this nomination regularly refer to the nominee as "senorita" or "Maria" or "the judge-ita" throughout the confirmation process.

I'm thinking: 'Judge Chica.."
5.28.2009 9:59pm
Leo Marvin (mail):
cboldt:

-- I find it remarkable that people who call themselves conservative and who profess to believe in judicial restraint favor the application of Heller to the states. --.

It's an "old school" attitude, also on display in the Presser case. Even if there was no 2nd amendment, neither the states nor the feds have the power to prevent a free people from keeping and bearing arms.

Dare I say "penumbra?"
5.28.2009 10:44pm
cboldt (mail):
-- Dare I say "penumbra?" --
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Heh! No such utterance in Presser, hadn't been invented yet.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

Now, "application of Heller to the states" is one way to get there, but the old school would skip all the selective incorporation malarkey and simply point to Presser and say "you can't ban the people from keeping arms."
5.28.2009 11:00pm
Oren:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.



All of that is dicta, of no binding effect and might as well not be there except to inform the reader of how the Court got to its conclusion.
5.29.2009 1:01pm
cboldt (mail):
-- All of that is dicta, of no binding effect and might as well not be there except to inform the reader of how the Court got to its conclusion. --
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Old ground. Covered at 5.28.2009 1:17pm. Would add that in light of the "penumbras" comment that elicited my response, the Court my response hypothesized as pointing to Presser would be SCOTUS.
5.29.2009 1:37pm
Leo Marvin (mail):
cbolt,

Would add that in light of the "penumbras" comment that elicited my response, the Court my response hypothesized as pointing to Presser would be SCOTUS.

Not sure what the point is. Anyway, my question is, which part of the Constitution did the Presser Court rely on for that dicta?
5.30.2009 8:19pm
cboldt (mail):
-- Not sure what the point is. --
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You said "penumbra," to which I said old school approach would just point to Presser - and the Court that I envisioned using old school would be the same court that has the power to invent penumbras. Oren came back and said that the passage I took from Presser wasn't binding. I was simply reiterating that the Court I had in mind was SCOTUS, where "binding" takes a dimension all its own.
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-- which part of the Constitution did the Presser Court rely on for that dicta? --
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The Cruikshank and Presser cases read as though the source of all legitimate government power, the people, inherently possess the right to keep and bear arms, and that right wasn't expressly surrendered. Directly expressed was that if the states would not honor the people's right to keep and bear arms, then the states would be stepping on the federal government's power (in addition to stepping on the people's power).
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The whole case is online. It isn't very long. I speculate that you've read it, know there is no express language connecting the US Constitution to the right of the people to keep and bear arms (as against the states), and fancy that you've crafted a "gotcha question." If the discussion were to be carried out, it would illuminate the difference between seeing the constitution as working a grant of powers by the government vs. to the government.
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The Presser case does more direct work in this regard, as to the right of the people to petition the government.
5.30.2009 8:55pm
Leo Marvin (mail):
cboldt:

The Cruikshank and Presser cases read as though the source of all legitimate government power, the people, inherently possess the right to keep and bear arms, and that right wasn't expressly surrendered.

In other words, there's nothing in the Constitution that says "the states cannot, even laying the [2d Amendment] question out of view, prohibit the people from keeping and bearing arms." So the Presser Court either found it in the penumbra of another provision or not in the Constitution at all, in which case what's the source of federal authority to enforce it?

[All this, of course, assumes hypothetically the Court would purport to make that Presser statement with authority rather than in dictum.]
5.30.2009 11:13pm
Leo Marvin (mail):
cboldt,

For some reason I read the part of your comment I quoted, got serially interrupted, and when I finally returned forgot I hadn't read the rest. So I just answered that part. Now I see you anticipated part of my question. Serves me right for over-multi-tasking.

Anyway, the question remains, even in the frame you prefer, which is, by the way, the one I had in mind, i.e., grants to the government, not from. What is the Constitutional authority for granting the federal government that power against the states? You say,

"Directly expressed was that if the states would not honor the people's right to keep and bear arms, then the states would be stepping on the federal government's power (in addition to stepping on the people's power)."

but it's the Court that's doing the expressing, not the Constitution. If you think reading a federal power into a natural right of the citizenry, enforceable against the states, to bear arms doesn't require some fancy penumbrizing, then you're so comfortable with the practice you don't even realize you've become a liberal!

As for the "gotcha" question, I suppose you could call it that, since I have no problem with penumbras. But that also means, to be consistent, I have no problem finding a basis to enforce against the states individual rights enforceable against the federal government. And that includes the rights conferred (or recognized, as you doubtless prefer) by the 2d Amendment. I'm just challenging you to be equally consistent.
5.31.2009 1:18am
cboldt (mail):
-- I'm just challenging you to be equally consistent. --
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The Federalist/Anti-federalist argument, vis-a-vis the wisdom of attaching amendments to the US Constitution, makes the unanimous view of the grant of power as to the rights of the people quite clear, particularly so in the areas of the 1st and 2nd amendment. I reject your assertion that SCOTUS view of the 1st and 2nd, as expressed in Presser, is finding a right residing in some penumbra.
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I appreciate you laying out your rationale and conclusions, and hopefully will recall your handle(s) as time goes by.
5.31.2009 4:19am

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