NYCweboy

Nothing From Nothing Leaves...

As I kind of expected, the theater of Sotomayor hearings has been more heat than light, but really, even, not much in the way of heat.

With Senator Sessions leading the way (and really, I like Talk Left's reminder that he's "Jefferson Beauregard Sessions" not "Jeff Sessions" - a reminder of just the sort of old Southern way he represents), the Republicans have shown that a handful of nothing - a few words from a speech years ago, an old quote from a panel discussion, and one controversial case - amounts to, well, nothing. The idea that on this thin gruel Republicans could raise armies of opposition was fanciful at best. Republican marginalization, I think, is about as complete as it can be just now; objecting strenuously to Sotomayor merely shrinks the possibilities of future electoral success... and from the way some Senators (like Hatch, the real veteran of these things, or Graham, who's more savvy than many) hedged their objections, clearly everyone was not as on board as they should have been.

Still, I don't think real progressives can take a lot of heart in what's been shared - Sotomayor's generally measured, cautious approach to speaking, never mind judging, doesn't suggest someone interested in brave new leaps of legal thinking. The law, ultimately, is about ideas, and that's why the Supreme Court matters so much - it's where our old laws meet up with new thinking and new ideas about how we change as a society. As much as Sonia Sotomayor represents a major social change in accepting women and minorities into a fullre role in our society, she may not represent a particularly adventurous change in how we think about the law. And that, really, is what we desperately need.

Judge Sotomayor's relentless reliance on "this is what the precedent says" and "that's how settled law works" have made for frustrating exercises in questioning, both from Democrats and Republicans on the Senate Judiciary committee. I don't mean, as many do, that we need to know how she plans to rule on abortion cases, but the frustratingly opaque way she refused to look at how she might handle situations where the law is not "settled" or the "precedent" is unclear. The Supreme Court is where we go to find out what to do when the law isn't clear... not when it is. And Sotomayor's terribly literal notion of how to judge does not, I think, raise hopes that in a situation where splitting the difference or barely moving amounts to doing nothing, that she won't, still, wind up there.

Don't get me wrong - she's a nice lady, she's clearly very smart, and I'd rather she be confirmed than not; but the cautiousness all around this choice is, again, not something that I find comforting or positive about the times, or this Administration. Nor do I think, still, that we're getting the kind of intelligent, thoughtful process for evaluating Supreme Court nominees that would help everyone understand what's at stake. Instead we've gotten big mounds, heaps of nothing, stacked up as if they amounted to something. It's still, though, not very much. And it's all we've got.

Oh, It's Already Been Broughten

Mom and I discussed it a bit over dinner last night, but I'm still a little surprised to see how serious some conservatives are: given a choice, the right seems determined to pick the painful path of opposing Sonia Sotomayor in as loud and ugly a manner as they can muster. No need to even bring matches... they'll set themselves on fire, thank you very much.

Bring it on? Oh no... it's already been broughten.

Peggy Noonan, for my money, lays out the case that needs to be made: that Republicans can't win by  pulling out flmethrowers, throwing around words like "racist" or (a recent fave) calling La Raza a "new KKK". Did Judge Sotomayor say something terrible by suggesing different people with different life experiences might bring different insights, maybe even better ones to particular cases?  No, she said something obvious, even necessary about how we enshrine a notion of "objectivity" that isn't real (one that, in another context, conservatives themselves see - when we dispute whether "liberal media bias" is "objectivity" of another sort).

I said going into this that I thought we were about to get a summer of more heat than light on the Supreme Court debate... but I didn't imagine we'd get all of summer in one week. Conservatives managed to race through the gamut of discussion so quickly - that's our new internet culture for ya - that there was barely a moment to even contemplate "let's try and be civil" before "oh, never mind, let's just run in guns blazing" took over. By all means... carp about how to pronounce her name. Sling all sorts of ugly charges while piously complaining about past treatment of Robert Bork and Clarence Thomas. You could raise the discourse... or you could not even try.

In our discussion last night, I said, honestly, that I'm not sure Sonia Sotomayor is the best pick... but that won't matter now, since we're not about to get hearings or a public discussion that might illuminate issues that actually matter - her judicial reasoning, her thinking on key issues (and I don't mean abortion or even guns), her approach to the law. As Noonan says, Republicans do themselves a disservice these days by doing so little to rein in their worst impulses (even as she, weakly, tries to blame Democrats and the Bork confirmation as the moment it all went so wrong). Republicans need a general public that can see the way they whink about legal issues; a Supreme Court confirmation would be a great moment to educate people and discuss ideas. Instead we get the latter day equivalent of "Goody Proctor Is A Witch!"

The failure to manage any coherent, thoughful response on the nomination of Sonia Sotomayor (as obvious as it was when Obama announced her, it's just ten times clearer now that her confirmation is all but a done deal), probably just restates the obvious: that the Republicans are in serious collapse, rebuilding will take years and involve some significant change. It's the kind of thing I remember from the Reagan years, when stopping Bork - who should, really have not even been nominated - took so much energy, and left such scars, that it was clear something was wrong within the Democratic party.  It took years, and not a small amount of painful rethinking, to rebuild our way to Bill Clinon in the nineties, and our reestablished dominance in Congress today. I'd love to say I find myself enjoying the Republican collapse... but I just keep thinking, "oh no... not another teen movie."

Abriendo Puertas

As if to underline the story of Republican disarray, President Obama moved today to nominate Sonia Sotomayor as the next Supreme Court Justice. Sotomayor would be the third woman and the first American of Puerto Rican descent to serve on the Court, if confirmed.

Of course, "if confirmed" is all about niceties, just now. It seems hard to imagine her not being confirmed (though the Obama team and "successful vetting" still seem like a work in progress), and most of all, it feels all but impossible for Republicans to muster the public support needed to paint Sotomyor as so hopelessly ideologically unsuited as to negate her confirmation. Which is why, so far, the objections to her are a lot of noise, and little more.

Many conservatives pointed to her role in the pending Supreme Court case (Ricci v. DeStefano) over an exam for firefighter promotions in New Haven, which resulted in no promotions after no black candidates passed the test. The case - which has been summarily dismissed at each level so far - still seems less than meets the eye; even if promotions were warranted, the absence of promoting anyone is not, by itself, evidence of discrimination against white people. Even so, a decision that sent the case to trial (it's hard to see how even the current conservatives on the Court could insist on a verdict for the promotions when no evidence has been presented in a court), would hardly disqualify Sotomayor.

Much of the political calculation is so obvious it hardly needs restating: attacking Sotomayor will look like an attack on Hispanics generally which Republicans can't afford, and probably can't win. After 8 years (and two confirmations at least in the Bush years, for Roberts and Alito) arguing that ideology alone shouldn't derail a nominee, Republicans have few arguments to offer against Sotomayor's qualifications, or even temperament.

Moreover, the most probably dubious issues - that Sotomayor included, we will gave a Supreme Court made up entirely of former members of the Court of Appeals; or that she will be the fifth sixth Catholic in recent picks - are not ones that either right or left can raise and use to much avail, though both indicate a sort of ideological narrowing that's probably not good. I'm not wild about Sotomayor - even just among women on the left I think a number of women seem like more interesting legal thinkers - but for what she will bring (the "life experience" argument that probably does matter, a lot), surely, we could do worse.

Sotomayor's selection and confirmation process probably guarantees a summer of a lot of political heat, and probably not much substantive advancement of ideas; and liberals who get sucked into familiar right/left arguments on abortion and such will bear some responsibility, too (I think it goes almost without saying that we're not about to get uplifting discourse from the right). The debates will be especially pointless, given that, barring an especially surprising "scandal", Sotomayor's trajectory to a seat on the Supreme Court seems pretty much assured. As liberals, we should probably just be glad for that... and the opening of a new door.

Replacing Nowhere Man

Nobody, really, held up David Souter as the Supreme Court Justice they wanted most. Nobody - and I mean no one - ever said "let's find another Souter," though Souter's lack of a paper trail became the guiding model for potential candidates. Don't say much... and God forbid you say anything interesting.

So now he's going, and  people wonder "what next" and I think this might be, for even the most supportive Obama cheerleaders, the final straw in "we simply have too much on our plate." We were prepared for all sorts of legislative fights this year, on health care and budgets and the environment... adding a Supreme Court confirmation to the Senate, well, that's just cruel.

To us, people... not to them.

That Souter was often best seen as unremarkable is not an argument against him being on the Court, at least not to me; we spend too much time, in our "everyone's above average" way in this country setting overly high expectations and wanting stars everywhere to do everything. Souter was a reminder that really, a good legal background and some judicial experience... and you could probably handle being a Supreme Court Justice, too. That's not the worst lesson, when the alternative is a brilliant jurist... like Antonin Scalia.

Then, too, there's the lesson Souter taught us about ideology: appointed by a Republican, many assumed Souter would be "realiably conservative" on the Court, whereupon he morphed into one of the most reliable elements of the "liberal wing." We got Souter because many conservatives fretted, in 1990, that someone visibly conservative could not be confirmed. Over time, and because of Souter, the right abandoned the "stealth strategy" and made their assault more direct: a new world of judicial appointments where idelogy, first and foremost was the criteria, even when the ideological tests made little sense, or a least, no sense as a criteria to be favored over every other.

I don't love the way we put simplistic left/right labels onto the Court - the current Court is something like 7-2 pro-business and corporate interests, and about 6-3 against the rights of defendants and suspects, often - but Souter long ago became the far right's best example of a Bad Appointment That Failed to Perform As Advertised (while Robert Bork remains their best example of Who Should Have Been Confirmed). A good lesson from Souter's confirmation battles, tenure and retirement, I think, would be to look less at ideology and more at skill. I've long maintained I want a good judge, a thinking judge, a reasonable judge... more than I want a hard-nosed partisan of any stripe for whom politics trumps good sense (No More Bush v. Gores!). I know that's not a popular sentiment out here on the bloggy left, where the 25 year run of conservatism wore out even the most judicially fair minded.

By the time Sandra Day O'Connor retired and we were all wishing for more like her - because that was better than the Roberts or Alito we wound up with - you knew things were just off the edge. People didn't want "another O'Connor" because they agreed with her views - or her attempts to find common ground - they wanted her because, ultimately, she turned out to be somewhat less scarily conservative than the others. If anything, I wish we would ratchet back the politicking and the ideological tests. Few people maintain fixed idologies over time (though I'll concede three of them at least are on the Court now - Thomas, Scalia and Roberts, while I'm less convinced about Alito), and we could do well to find good thinkers whose thinking evolves over time and gets us to new and different ideas we don't even know yet.

If there's a Bush-ian/conservative value we ought to really try and eviscerate it is the anti-intellecual, know nothing approach to politics and political appointments. We should try and appreciate that good thinkers, smart thinkers, have opinions and express them; we want that, it's a good thing.

For all the initial hand wringing - never mind the bit chomping eagerness of some lefties to mow down the old opponents - over the upcoming search and confirmation process, I'm actually least worried about Obama in this regard. I trust him to make good, smart, interesting Court picks. I suspect he's even smart enough to introduce what this Court badly needs - someone who believes in compromises, and persuasion, and reaching out to "sworn enemies." Replacing David Souter will work best when it's not about hiding a point of view, nor about believing that a more ideological "liberal wing" will solve all of our problems.

Finding a new Supreme Court Justice, and getting that person confirmed will almost certainly be large scale political theater; but if Obama looks past the politics and ideological purity and seeks excellence, we might just be able to jump start the kind of change I think Obama's best suited to deliver: the one where we try harder to make our government work better and smarter. I don't need remarkable, I don't even require a dyed in the wool lefty... just someone who can be smart and effective. And really... no more David Souters.... Or perhaps... more David Souters.

...And Because They Did It

My new favorite highlight from the passage of the Lily Ledbetter Act:

Republicans said the bill was unfair to employers. They will be exposed to “decades-old discrimination claims that they have no ability to defend,” said Representative John Kline, Republican of Minnesota.

Over at Pandagon, Jesse Taylor points out that's why companies have lawyers, but I'd like to point out the obvious - companies face sex discrimination lawsuits they can't defend against... because they did it.... and they're guilty.

Just mentioning this to my Mom revived her own anger over the Supreme Court's decision, and I agree with her that it was one of the more amazing miscarriages of justice I've ever seen, built on near perfect Catch-22 logic (file a case for discrimination you didn't even know was happening, and prove it contemporaneously, or lose out). This, when we don' even disagree. That's how angering the Lily Ledbetter case was, and is. And really, just ask a working woman in my Mom's generation and you get all the stories of "they said he got the raise because he had a family... as if we didn't."

So yes, I too love the idea that President Obama's (I just like saying that, over and over... President Obama, President Obama...) first signature will be for gender equity. It's nice to see us do the right thing, finally, after so long of doing the perfectly wrong one for the perfectly wrong reasons... like, hey, sex discrimination suits about decades old practices are unfair to employers who, like, used them. Just because you can prove a historic injustice... doesn't make it, you know, wrong or anything.

And here maybe is a good moment to put the word in for the House Republicans, who  seem to have settled on the perfect strategy for a decade of failure: oppose everything for the perfectly wrong reasons, in perfectly unified fashion. Clearly, what they're betting on is that when the honeymoon with Obama ends, Americans will blame Democrats for a bad economy, all sorts of social problems, and bad foreign policy... and there they'll be, having been Right All Along.

Well, it's a theory... but I suspect they can already see it's backfiring, hugely. Sure, people have issues with TARP and the bailouts... but Republicans, especially in the House, more or less took up opposition with no alternative. That's not helpful or challenging... it's simply obstruction. And sure, there's reason to question the Stimulus Bill... but their tax cut alternatives (which, really, are little more than attempts to bribe ordinary folks into shopping some more as a way out of recession) are simply lousy: they remove yet more revenue from government at a time when we need fiscal responsibility, and they ask Americans to resume the behavior that caused this crisis to begin with.

But more to the point, the problem for the House Republicans is the sort of thing one used to say about Democrats - wishing for the failure of policies is to wish for the worst: suggesting that Americans will turn to you when the economy gets worse... means you're looking for bad events to occur. That's just poor strategy. And my bet is, not only will they pay for it... but it's already becoming clear that no one can take them seriously in negotiating compromise.

And one more thing... this Honeymoon for Obama does not show signs of ending anytime soon. Opposing the guy who's being seen as a go-to, get-it-done kind of executive, betting on his imminent failures... may just help him extend the romance (bro-mance?) that much more. If the choice is him... or the House Republican way... I'd pick Obama. And like the employers facing "Lily Ledbetter" type suits, House Republicans will get what they deserve... because they did it. To themselves.

Black, White, Other

I always expected that the election of a Democrat - never mind the election of Barack Obama - would expose some otherwise unexplored rifts in the Democratic coalition (and that, as I never wrote, was no reason not to replace George Bush with something better).

What I did not expect was for it to happen so soon... or to happen over the passage of Proposition 8 in California.

First, let's get out of the way the amazing, visceral anger of the gay community and others, especially out in CA. I have to admit, as I mentioned before, that I was caught off guard by my own dismay at the result. I don't know why - probably naivete - I thought California, at least would be sane (most of us, after all, can hardly be surprised by negative results, again, in Florida and Arizona), but that was too much. Like many I feel let down. And though I'm not filled with rage, I can see why others, with more passionate investment, would be.

Already, there's plenty of interesting aftermath: in addition to lawsuits already being filed to fight Prop 8 itself, complaints against the Church of Jesus Christ of Latter Day Saints (the Mormons) are being pursued after the Church contributed millions of dollars to the "Yes on 8" effort.

And then, of course, there's the ugly fallout over race.

Gone Fishin'...

As previously announced, the NYC Weboy will be on a hiatus from blogging here for the rest of August. Please scroll down, as it's likely that J in Baltimore and RedStar may fill in the gaps with musings, links and photos of their own. You may also find me blogging some critical things over at newcritics. I will not be checking this blog on any kind of a regular basis, but I can be reached via e-mail (nycweboy at nycweboy dot com)... and I do welcome correspondence. I will resume blogging the Tuesday after Labor Day. Yes, that means I will not blog about the Democratic Convention... but just assume I liked Hillary's speech, that the VP selection is not my favorite choice, and I wasn't all that impressed with Obama's speech.

Have a great summer. Enjoy.

Defending Your Life... And Theirs

Well, things seem to be shaking out okay on the adserving front, so I'm starting to calm down.  And maybe I can even get to one or two of the things I was meaning to take up.

So, first off, over the weekend I caught this post by Jeralyn Merritt over at Talk Left, talking about Mickey Sherman's new book, How Can You Defend Those People? I hadn't realized that Merritt is a well known attorney who defended Timothy McVeigh, and her own decisions about who to defend thus become an interesting part of the overall discussion.

Merritt talks about Sherman's interviews with various lawyers, asking them where they would "draw the line" in defending bad characters - child molesters, bombers, mass murderers... these are the sorts of responses that come out. 

The reason I mention this, though, is because my mom's reaction was strong, and reminded me why I'm glad I get her insights.  She pointed out that in fact one shouldn't draw lines.  Everyone is entitled to a defense. It's not for us to judge who should and shouldn't get one.  She reminded me of debates she had with her students - back when she was teaching professional ethics in healthcare - where they wanted to pick and choose "good" clients from "bad" ones (it's why many of them wanted to wind up working with children... less moral qualms). 

Obviously, there's a difference between medical and rehabilitative treatment and legal services.  But still; I'm reminded of how Alan Dershowitz can suggest that he'd defend Hitler if the alternative was no one. That's what it is, I think, to believe in the law, and to believe in the rights of all people, however monstrous. It's an interesting question (and here, already I've managed to invoke Godwin's Law), a reminder of our humanity. I wouldn't want to be the one, necessarily, defending Timothy McVeigh either.  But if you have, I'd wonder why then decide you can't defend someone... for something.

Strictly Speaking

I mentioned the notion of "strict constructionist" judges in my discussion this morning... and then ran into this intriguing debate: Eugene Volokh taking Dahlia Lithwick to task for her recent examination of the Supreme Court's hearing on the DC gun ban, and its Second Amendment implications.  The short version is that Lithwick writes, as others have pointed out, that finding an individual right to bear arms will be an expansion of the Constitution, and in conflict with the "strict constructionist", originalist view that judges should rely on "original intent" when evaluating constitutional issues.  Now, the question on the Second Amendment is a long debate... but the more interesting point I got was this, rather sweeping, denial by Antonin Scalia that he was ever appropriately labeled a "strict constructionist":

"Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." --Antonin Scalia, "Common Law Courts in a Civil Law System."

(Via Lawyers Guns and Money). I hadn't noticed this (it comes from a lecture Scalia gave at the University of Utah), but it raises some interesting wrinkles, I think, for conservatives, as even the people who we try to label as "strict constructionists" seem to walk away from the concept. 

I find Supreme Court law fascinating - I was first exposed at Journalism School (That's right bitches, Ize Trained As A Joornalist... as they say in LOLCat) to First Amendment law, and I've been reading court slips pretty much ever since.  And I've long thought that our left-right tensions over the Court's composition miss a lot - mostly that I think the "conservative court revolution" has been oversold: while it's true the Court now has a clear, "conservative" majority, it's not entirely clear what success they'll have getting it to do the things conservatives want.  And while I'm sure John McCain would make it worse with his appointments, it is also interesting that the term he'd use for searching... is one the Chief Constructionist rejects. Just something to ponder.

And He'll Go To His Grave As The Angry Old Man...

I have to admit, Clarence Thomas has fascinated me.

My argument against Thomas, unlike some, has never been about his politics.  Really, my Dad was a fairly conservative black man, and an occasional Republican (to my Mother's occasional chagrin), and I'm not one to tell you that conservatives have it all wrong.  They've got a lot of it wrong... to be sure, but not everything.

No, my issue with Thomas is that he's not very good.

I think if you're going to have one "black seat" on the Supreme Court - which is, of course, insulting - then you might as well reserve it for the best.  Thurgood Marshall, in most everyone's estimation, was one of the best. A great mind, a passionate lawyer, a widely admired and respected justice.  Clarence Thomas, really, was none of those; at best, he was a loyal Republican and movement conservative who'd done a good soldier's work and hoped for a fair reward. And, well, he got it.

What fascinates me about Thomas is that I think he kind of knows this - he's had a complex life of feeling inferior, of being different, of not fitting in... and frankly, every time I hear or read his thoughts, I always think "what a bitter, bitter man."

And now, here he comes with a memoir to underline just such a conclusion.