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Something About Health Care, The Courts, And Labels

In the fog of illness - I'm doing somewhat better, but nowhere near 100% - trying to keep up with current events is both challenging and surreal. I can't quite concentrate enough to follow all the details, and the whole things becomes a blur. There was a court case. Richard Holbrooke died. Bloomberg is speaking. Somehow this must all fit together.

The problem, partly, rests outside of me: the 24 hour news cycle has flattened information until everything is news and nothing is news, all at once - both "I already knew that" and "why did I need to know that" at once. So many things are happening... and yet, nothing, really, is going on at all.

Maybe that's why I found somehting in the juxtaposition Monday between the xecision of a federal judge in Virginia to invalidate the "insurance mandate" provision of Health Care "Reform" laid up against the "No Labels" meeting of prominent people who think we should stop sorting people into left and right so rigidly. The latter was neatly summed up, I think, when I said to my mom during coverage of the event "that seems kind of dumb" with her responding "it is, but that's not the point."

I don't remember what the point was - the convenience of a cold! - but I think if there's one place I'd like to apply "no labels" it's to the Judiciary. We've been wandering down this sad road of politicizing judges and judging for years (i tend to trace it back, as many do, to some of the uglier judicial fights of the Reagan years, especially Robert Bork's nomination to the Supreme Court), and we're really not better for it. And not just because of conservatives and the Right Wing, but also because many lefties - my mom included - have a kind of faith that progressive causes can ultimately be won through a judge's decision.

I've never been thrilled that Marriage Equality hinges, basically, on a court case, but at least that's the kind of advance that folows logically from previous law, a gay people's Loving vs. Virginia. And the thing is... I don't think that's the kind of decision that actually hinges on left versus right. When we look at ideas of equality and freedom enshrined in our constitutional law, I don't think "left" or "right" really matters. There are different ways to interpret the law, different approaches to the law... but ultimately, there is the agreement that we have laws, and a sense of how to organize a civil society. Why do we insist on needing to politicize even the ajudication of the law?

What's sad about Judge Hudson's decision is how it neatly falls into the easy left/right chasm that's coming to define litigation about the Affordable Care Act. A longtime Republican with close political ties to opponents of the reform bill, Hudson found - surprise! - that the insurance mandate was unconstitutional. Two other judges - Surprise! Appointed by Democrats! - found the oppsite. So now we can pretty mcuh expect all of this to wind up at the Suprem Court where - surprise! - we already assume that 4 judges (the ones appointed by Democrats) will approve of it and 4 judges (you guessed it) won't... and we all agree that Anthony Kennedy has the final say... because he's apparently one of those people who craves attention by being in the "middle."

I've said before, I tend to think the mandate, or something like it, is probably constitutional; health insurance is already part of the tax code (that's the Employer tax break that fuels our employment based system) and "proof of insurance or pay a penalty" doesn't strike me as a bridge too far. Ken Cucinelli's attempts to blow this into a major constitutional crisis seem illustrative of how he's not going to work out, mostly. But I can see the opposite side of, say, requiring everyone to provide proof a cable TV subscription, or pay a fee... how do you distinguish between a fee that's reasonable and a fee that's too far?

(Insert much longer argument about why the whole health care "reform" bill was a bad idea here, and follow it with observation that mandate, alone, is hardly the main issue of why this law is flawed, here.)

That, after all, is what the law is for: to figure out these kind of nuances, to figure out how and where the lines get drawn, and how to enforce those lines. I think it's fair to ask the questions; I think it's a necessary part of our civics to try and draw the lines. And still, I don't think this should be political, not the way it's become. The unfortunate thing about the "insurance mandate" case is not that it will be decided one way or another; it's that the decision, either way, will be seen as one side's political triumph, rather than a clear, legal resolution of a contentious issue that we can all find sensible and useful. We'll be worse off for that, however it gets resolved.

Marriage And The Incoherent Opposition

Like many a gay person, I was heartened by Judge Vaughn Walker's decision in Perry V. Schwarzeneggar, which, for now, overturns Proposition 8 in California. And, though I don't know about others, I figured it was kind of in the cards all along. Whether one wanted to rely on the powerhouse combination of Ted Olsen and David Boies as attorneys for the plaintiffs, or the spectacular way the case unfolded, it seemed clear early on that success was in the cards, and that reality never really changed.

The future results may not be as clear - I'll finish this piece with my own guess about the Supreme Court - and, as always, gay people aren't wrong to worry about a brief win only to suffer greater losses down the road, but I think the events of the summer on the Prop 8 case underscored a reality that makes "gay" marriage an inevitiability whether now or later: the opposition to it is fractured, and especially incoherent.

The deep, dark secret of opposition to "gay" marriage is that it is not, really, a unified effort, which has everything to do with evolving awareness and understanding of sex and sexuality in our culture. Marriage for two people of the same gender was simply impossible to consider less than 30 years ago, mostly because of our invisibility. Prevailing notions that gays were "sick" or "curable" hadn't been sufficiently challenged, and the growing Gay Pride movement was more oncerned with basics like, well, stopping violence and bigotry, than more positive results like honoring our relationships equally and fairly.

This week's decision, and the case that was presented, underscore how much has changed, and especially how little juice is left in making gays into social pariahs. What is left on the "gay opposition" side is a loose amalgamation of the most strident gay hating bigots, and a less well defined group of "moralists" who offer vague, nospecific notions of problems with same sex marriage while trying to actively disavow connections to the more strident homophobes.

And the thing is... the haters probably have the better case: if gayness itself is an abomination, if gay people are sick and degenrate and all the rest... it's easier to make a case that people who are so bad and wrong don't deserve fair treatment. Take that element away, and not much is left. All of which goes a long way to explain why the case for Prop 8 failed: the defense's case evaporated as promised "expert" testimony was pulled, and what few "experts" that did testify were undermined by their own poor logic and lack of conclusive evidence.

The "moralist" case after all rests, mainly, on tradition: it has always ben thus, and thus should always be this way. Over and over, when pressed to explain what "damage" same sex couples could do to even the idea of marriage (since, it was pretty easily established, one couple's marriage has no practical effect on another's), groups like the National Organization for Marriage (and its spectacularly muddled chair, Maggie Gallagher) offer little more than vague notions of "traditional" ideas of marriage - whether it's marriage is for procreation (also pretty easily torn down), or some generalizations about "social norms" that don't hold up under social science research (not that I love social sciences... but you bring it up, you live with the result).

All that running away from "gays are sick and terrible and bad as people" that the hair splitters go to (which is a vivid illustration of the "love the sinner hate the sin" ethic of Catholics like Gallagher) is about pretending that what's really going on here isn't that simple: gays shouldn't marry because, well, they're gay. That's about all the opposition has, and has always had, and in the long run, that notion fails because people either find it a) hateful or b) inconsequential to their own lives, or both. But it's the fractured nature of opposition to same sex marriage that's doing the opposition in. Concede that gay people are, well, people and deserving of decency and even acceptance as gay... and you've taken most of what would deny gay people the right to marry off the table.

Judge Walker's decision lays out, calmly and coherently - if not necessarily persuasively - the reasons that simple prejudice cannot be reason enough for a majority to put the rights of others to a popular vote. That opinion, along wit the presence of Ted Olsen, a persuasive, even commanding, presence among legal conservatives, says to me that hopes for a close Supreme Court decision by anti-marriage types are optimistic. I think it's reasonable to suspect that Justice Kennedy, plus the Court's four Democratic appointed justices, will agree with Walker's reasoning... but beyond that, I suspect that one of the more conservative justices could even be persuaded to make this into a 6-3 decision. Optimistic? You bet. A dreamworld of bright fluffy clouds, even. But unless the incoherent, fractured opposition to same sex marriage can pull together a better argument than "tradition" and "because we said so"... they don't have a lot of a case. And while "tradition" can trump good sense... that's not going to be enough for the opponents of same sex marriage. Not for very long.

Don't Ask, Don't Tell... And I Don't Mean The Military.

Like clockwork, Elena Kagan received her nomination to the Supreme Court... and the topic I brought up a few weeks back resurfaced: is she, or isn't she?

I have no idea whether Kagan is a lesbian or not (and, like many, don't really care)... but already it's clear that bringing this up, or suggesting it's in play is being drawn as off limits. That may be because it's untrue - though it's  been a striking array of non-denial denials, and "I know her when she dated men" type appraisals that don't, in any direct way, answer the question - but I'm more struck by the attempt to silence a discussion before it even starts.

That's why, as frustrating as he can be, I'm impressed with Andrew Sullivan for bringing up the question and not being cowed into shutting up. If "there's nothing wrong with being a lesbian"... then why does everyone seem so skittish that, say, presenting a photo of Kagan playing softball (and, hilariously, I listened to a clueless Rush Limbaugh ask "is there something gay about softball that I'm missing?" Oh, Goddess...) might, you know, give anyone the "wrong" impression... or indeed, any impression at all. Other than that, you know, she likes to play a recreational sport.

In the rush to repeal "Don't Ask, Don't Tell" as military policy, we forget, I think, why we wound up with it, and why it has, even now, stuck: what the compromise buys, really, is silence. And silence, really, is the story here. It's not that there's something wrong with being gay... it's that we'd rather not know.

To Have A Double Standard... You Have To Have A Standard.

Is Elena Kagan a lesbian?

I have no idea. Until last night the idea hadn't, honestly, occurred to me; but, apparently, it's been kind of discussed, or known about... or something, while Kagan was at Harvard as Dean of the Law School. In a blog post about top candidates for Supreme Court Justice, Ben Domenech included Kagan - the current Solicitor General (and the first woman in that post) - as one of his examples, and lauded the fact that she'd be an openly gay Justice. The post was picked up by CBS News, which has been using Domenech as a blogger (more on that in a moment). And then, apparently, all hell broke loose.

The White House had a spokesperson come out and complain that Kagan was facing "false charges" of being a lesbian. CBS asked Domenech what evidence he had for the claim. Domenech, it turned out, had none... but didn't realize it was an issue. And he was backed up, in terms of this being sort of understood, by Julian Sanchez and Matt Yglesias, two bloggers not generally sympathetic to Domenech or his conservativism.

Like I said... I have no idea. Kagan's 50, unmarried, no one's ever mentioned a man or a potential husband, she certainly seems to have pursued a professional career with no interest in marriage or children... but I'm loath to draw conclusions. In one sense, of course, it hardly matters. Lesbian or not, Kagan seems like an interesting choice for the Court, and I'm among those who'd be pretty well pleased if she were nominated (Bill Clinton nominated her for the DC Circuit Judge slot that eventually went to John Roberts, on his way to Chief Justice).

What interests me is this official "we shouldn't care if she's a lesbian... so don't say she is"  approach to dealing with the discussion.

The thinking behind this logic has been rolling along for a while; it drives some of the discussion of gay progress, and gay anger, in these Obama-led times, issues that I discussed, as others did, during the primaries and the election season. Barack Obama, clearly, was a better choice for gay people than John McCain. I'm not sure, then or now, that he was a better choice than Hillary Clinton... but that's not the point, not now anyway. However, I think the larger problem for gay people is this illusion, often perpetuated these days, that gays have somehow made more progress than has actually occurred, only to discover, in unpleasant moments, that things are as bad, or worse, then they've ever been.

Gay marriage and "Don't Ask Don't Tell" are obvious, hot button examples... but this goes to, I think, some of the depression that followed the prom story in recent weeks, and underscores what's not happening with Kagan. There's this notion that people are out, that gays are accepted, that our society is more accepting and tolerant... as long as we don't push it too far. It doesn't matter if Elena Kagan's a lesbian... just don't suggest that she is one.

We forget, really, that despite suggestions of progress... many prominent people are not out. Still. We ignore that people who are out, in government, still face surprisingly high hurdles in, say, the confirmation process for appointed offices. The illusion is filled in, I think, because, being out, in small ways, and in many places, isn't a big deal, and gay people quietly live within certain limits. That, and we convince ourselves that a couple of reality shows about hairdressers and fashion designers amounts to progress.

My friend J likes to point out, whenever a new sex scandal pops up, that there's an unspoken double standard in politics that never gets brought up: all these stories about married men who are discovered with mistresses and hookers tend to underline the fact that single men, in fact, can't get elected to high office. Yet we never mention it, never even to point out that, for many of the men caught in the scandal, wouldn't face social rejection or ridicule if they were not married. Sleeping around, being somewhat promiscuous... no big deal. Just don't wear a ring... but if you don't, people will be wondering about when you run for office.

If the Kagan story has legs - and I suspect it does - we are bound to be told that there's a "double standard" when it comes to gay people, or women... or something. But there's not a double standard; there's a lack of any "standard" at all. There's a conviction, in the culture, that there's this acceptance of gay people, when in fact, there really isn't. It's an illusion. And into our clouds of illusion and fantasies that it's all better now, Elena Kagan's possibly being a lesbian challeges two things: the debate over what information is public or private, which shifts like sand... and the illusion that being gay is no big deal... unless, you know, you're actually gay.

That all of this will come from Ben Domenech, of course, is no help at all; Domenech's credibility has been shot since it was revealed in 2006 that he had an extensive history of plagiarism, having fallen upwards as a "prominent conservative" into a position at the Washington Post, and the resulting scandal forced him out of that job. Domenech has toiled since, quietly but determinedly, in reestablishing some bona fides, and restoring at least his reputation as a capable writer. This won't help; it's a Journalism 101 error that CBS should have seen coming, a reminder that "hiring paid bloggers" is often shorthand for "getting journalism on the cheap" often by reducing the presence of editors, whose function is to help catch things, like unsupported assertions in posts. Like I said... I have no idea if Kagan's a lesbian or not, and really, I couldn't care less. It'd be nice if she were, nice to know that we were, as a nation, capable of acknowledging appointing a lesbian to the Supreme Court. But my standard is not the national standard... because we don't have one of those. And let's not pretend that we do.

Money Can Change People Sometimes

I know I'm supposed to be really upset about the "corporate money" decision of the Supreme Court, but I can't quite muster the requisite outrage. Glenn Greenwald - to my utter shock - actually lays out the complete case for my own ambivalence, and beyond his take... I don't necessarily have more to say on it.

Well, just this: I think if people plan to be serious about campaign finance reform, then it can't just be a fair-weather exercise in opposing the money raised by your opponents, or trying to punish those who give to them. To get good, serious reform, everyone has to take a hit. And until progressives see that... nothing, really, can change.

In the last few election cycles, for a number of reasons, Democrats finally solved some fundamental "money parity" problems with the GOP. Partly, it was the internet, which greatly expanded options to fundraise from people with lower incomes who could give small amounts or in small increments. That unleashed a deep reserve of goodwill among less well off liberals whose money could, in aggregate, amount to substantial amounts.

But part of the gains, too, stem from the shift of EEP (Educated, Elite Professionals) to the left; with bankers, lawyers, and others in a position to give now interested in liberal causes, parity with wealthy Republican donors was easier to achieve. And with it came natural increases in corporate donations from entities controlled by these wealthy individuals: law firms, high tech companies, and as has been for a good while, the entertainment industries and media firms.

Citizens United is, without a doubt, a problematic decision; it invites new troubles, restores an avenue for excessive ad spending, and will, no doubt, unleash a string of unintended consequences... ones that, I suspect, Republicans have to know don't all work in their favor (unions and other lefty groups free to advertise against Republicans is going to hurt. A lot). But we're here because the regulations, as written, never really made a lot of sense and undermine our faith in free speech. There are other, better ways to address questions of "corporations as people" and even other ways to reform campaign financing. But mostly, we have to stop doing campaign reform that's conveniently tailored to help us and hurt them, whoever "they" are.

One of the results of the decision has been a lot of blogging under variations of "Money Money Money... Money" meant to evoke the O'Jays signature hit "For The Love of Money", surely one of the great songs of all time. As I've been vaguely out of sync with the anger over Citizens United, I've been more than a little taken aback over the use of the song. Darker, dirtier than most people realize, Foe The Love Of Money paints a bleak picture (it was the seventies and it was ugly in the urban jungle) of all of us and what we'll do for money. But the point is... it's all of us. None of us get to stand outside, untouched. Don't let money change you... but it probably will.

We don't like to talk about all the money Barack Obama raised from Goldman Sachs. Or the way Joe Biden is the recipient of enormous sums from the law firms of the civil bar (tort reform, anyone? Anyone?).  We like even less asking questions about why enormous donations of money and time from Unions doesn't, in its way, have a distorting effect on liberal politics... not always to the good (teaching standards, merit pay, removing bad teachers... I know there's a link here, somewhere). It's easy for us to look at a few bad actors on the right - Mormons paid for Prop 8! Oil companies oppose environmental reform! - rather than admit that, deeply, money touches all of our politics, affects most of what we do, and don't do. And explains why we do - and don't do - it.

I do believe, deeply, that we need reform of campaign financing... but part of the change, really, is things we have to change in ourselves - not letting advertising drive our every decision making process, but at the same time, persuading people with ideas and policies, rather than shouting and name calling. Or we can grow up, and admit that this is who we are and what we have to live with, that money in our system has to go somewhere, and the distorting effect of money on our campaigns will never, really, go away. Money changes... everything. And all of us.  And for the love of money... well, do you?

The Soft Bigotry Of... Well, Soft Bigotry.

It's a rough end of year for The Gays.

When election day passed and we faced another loss on gay marriage, this one an especially cruel result in Maine, I debated what to say. And while I waited ("dithered" now belongs to Obama, apparently), there started a harangue from the right about intolerant gay activists.

And still I struggled. But this week, the icing arrived when the New York state Senate voted down a marriage equality bill that had already passed the Assembly.

When Prop 8 failed, I was one who noted the failure of gay marriage to find support in the black community; I take that back: the problem, apparently is finding enough of anyone - at least anyone's who not gay or one of our friends.

The failure of gay marriage in Maine and New York has many angles, but all come down to proving why "I'm not intolerant" types like Rod Dreher and Jeff Jacoby - who both accused gay advocates of negativity and namecalling - have it backwards. Those who accuse the gay marriage opponents of intolerance and bigotry have it right... the challenge is making such bigotry both socially less acceptable and to make clearer why that is. Until then... treating gay people badly... well, that's just what happens. And it's hard not to be angry about it.

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.