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Monday, July 13, 2009

Previewing the Sotomayor Hearing

Politico has an excellent preview of this week's hearings. After week's of Michael Jackson, health care, and cap and trade, the Supreme Court takes center stage. The polling on Judge Sotomayor is underwhelming. The latest CBS poll has her favorability at eight points over unfavorability (23-15) but most are still undecided. That's way down from the last time CBS polled in which her favorability outweighed her unfavorability 33-9. The latest Rasmussen poll has her unfavorability as two percent higher than her favorability.

There is little chance that Sotomayor won't be confirmed. The Democrats have a five seat majority in Judiciary Committee and a filibuster proof majority in the full Senate. The usual suspects of issues will take front and center: the Wise Latina comment, the Ricci case, the Puerto Rican Legal Defense Fund, the 2nd amendment, and hopefully a few surprises.

While everyone is anxious to hear from the Judge, today will focus strictly on the Senators. Each of the Senators will get ten minutes. Each of the Senators will then question her tomorrow. The Democrats will likely focus on her biography and hammer away at how Sotomayor is the epitome of the American dream. Meanwhile, the Republicans will likely hammer away at her "wise Latina" comments and the Ricci case. Incidentally, Frank Ricci is expected to be a witness later in the week.

The opinions about Judge Sotomayor are plentiful. For instance, E.J. Dionne blisters anyone that dares to criticize Sotomayor.

The goal, Whitehouse added, "is to define the political ideology" of the new conservative judiciary as "representing the mainstream, and to tarnish any judges who are outside that mark."If you wonder what judicial activism looks like, consider one of the court's final moves in its spring term.

The justices had before them a simple case that could have been disposed of on narrow grounds, involving a group called Citizens United. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign finance law for a movie critical of Hillary Clinton that it produced during last year's presidential campaign. Citizens United says it should not have to disclose who paid for the film.

Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this

September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.

What the court was saying is that it wanted to revisit a 19-year old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley law banned independent expenditures by both corporations and labor unions.

To get a sense of just how extreme (and, yes, activist) such an approach would be, consider that laws restricting corporate activity in elections go all the way back to the giving directly to political campaigns.

It is truly frightening that a conservative Supreme Court is seriously considering overturning a century-old tradition at the very moment when the financial crisis has brought home the terrible effects of excessive corporate influence on politics.

Meanwhile, Robert Tracinski takes a different view.

This kind of argument by character assassination is part of contemporary politics, and particularly the politics of the left-just ask Joe the Plumber. But on the eve of confirmation hearings that are supposed to plumb Judge Sotomayor's legal philosophy, what strikes me is that Ricci's history is irrelevant to the legal issues raised by Ricci v. DeStefano. The central issue of the Ricci case was whether an employer can throw out a test used as the basis for promotion, not because there was anything wrong with the test, but solely because of the low number of black employees who qualified for promotion under that test. In effect, the question was whether employers are required to adhere to straight, unadorned racial quotas in order to avoid charges of illegal discrimination. That was the position endorsed by Judge Sotomayor in an appeals court ruling-and rejected by the Supreme Court on June 29.

With these big issues at stake, who cares whether or not the safety complaints Ricci made against the Middletown South Fire District in 1997 were valid or not? And what about the other 17 plaintiffs in the reverse discrimination case, like Ben Vargas?

But the question of Ricci's past and character was opened up by President Obama's stated desire to appoint a Supreme Court justice who would base her decisions on "empathy." Under this standard-which is reflected in Sotomayor's own statements on her judicial philosophy-it suddenly becomes relevant whether or not Frank Ricci is the kind of guy for whom we should feel "empathy."


Pat Leahy just finished his opening statement. He went into Sotomayor's history and background. He also said that he hoped that there would be no unfair attacks on Judge Sotomayor. He relayed the confirmation hearings of Thurgood Marshall, the first African American judge, in which he was asked if he would be prejudiced against Southern Whites. He also used the confirmation of Judge Brandeis, the first Jewish justice, who was asked if Jews' "affinity for altruism" would become a problem for him as a Supreme Court justice. He didn't mention the nasty and ugly confirmation hearing of Judge Clarence Thomas which turned into a hearing about his supposed sexual proclivity. He also didn't reference the hearings of Justice Alito which also turned into a smear campaign in which Democrats tried to turn his admission in a college group into some sort of racist tendency. It's curious that Leahy only now wants everyone to be respectful.

Meanwhile, Senator Sessions has just hammered away at her "wise Latina" comments and her comments at Duke University in which she indicated that the Court of Appeals is "where policy is made". He's also hammering away at her decision in the Ricci case as well her time on the board of the Puerto Rican Legal Defense Fund.

Here's video of that now infamous Duke University statement.

In other words, so far there are absolutely no surprises in the hearings.

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