The Hearing of Judge Sotomayor Day 2

There was plenty of fireworks in the second day however, for the most part, the back and forth between Senators and Judge Sotomayor could only be interesting to serious political junkies and constitutional scholars.

The most important part, in my opinion, came in a back and forth between John Kyl and the Judge. Senator Kyl quoted President Obama's standard for choosing a Supreme Court justice.

Ninety-five percent of the time the law is so clear that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial law-making.

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v Board of Education.

Senator Kly asked Judge Sotomayor if she agreed that in five percent of the cases a judge looks outside the law and looks inside their hearts like the president suggests. Judge Sotomayor categorically rejected this philosophy. In fact, the judge was clear that judges follow the law in all cases. She said that she always attempts to follow the law in all the cases that come before her. This rejection was something I predicted way back when Souter first announced his retirement that the Republicans had an opportunity to use the very line of questioning that Kyl made.

Now, a hearing for a Supreme Court Justice is the perfect platform to turn this from nice sounding euphimisms into the radical agenda that it is. This can be done through direct questions like "President Obama believes that the Supreme Court should venture into issues of redistribution of wealth and political and social justice. Is this something you agree with? How would you see it come about?" There are other direct questions like this one. "President Obama believes that empathy for the poor and downtrodden is an important quality for a Supreme Court Justice. Do you agree and can you give an example of a case in which empathy played a role in your decision making?"

The rejection of Obama's judicial philosophy by his own nominee is the biggest story of the day. The toughest questioner of the day was Senator Jeff Sessions. Judge Sotomayor was questioned repeatedly about her "wise Latina" comment. She claimed that it was a bit of bad word play.

My play on those words fell flat. It was bad.

Of course, given that Judge Sotomayor made these "wise Latina" comments at least six times in prepared statements, that's a bit of a stretch. She was peppered with questions regarding this comment. She was also grilled about Ricci. Though, all too often, the back and forth on specific cases got bogged down in wonky Constitutional jargon that only Constitutional scholars could understand. Frankly, this diarist isn't embarrassed to admit that for the most part the jousts went over my head.

Sotomayor was mostly on the defensive. The Democrats hammered the theme that she's "the most experienced Supreme Court nominee" in years. Ironic, how the Democrats suddenly think that experience is important.

In conclusion, the Republicans got a lot of good licks in. That Kyl got Sotomayor to reject the president's judicial philosophy has significant consequences well beyond the hearings. Sotomayor is still on track to become our next Supreme Court justice, but she's also on track to have a majority of Americans oppose her nomination.

Meanwhile, the Republicans won a battle in a larger war. I said that they could use these hearings as an opportunity to frame the president's judicial philosophy as part of a radical agenda. Kyl's question and Sotomayor's answer effectively did that. The idea that a judge should ever decide any case based on anything but the law was rejected by the president's own nominee. That's huge politically.

Here's some video of Lindsey Graham questioning the Judge.

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Some Quick Thoughts on the Sotomayor Hearings

Nothing has happened so far today that was unexpected. The most effective monologue, in my opinion, was made by Lindsey Graham. Graham, who appears headed toward voting in favor of Sotomayor, said he was bothered by the idea that someone in a robe could think their sex and ethnicity would make them a better judge than another. Graham also said that he would likely defer to the will of the president because in his words "elections have consequences".

While there was little drama in these hearings, there was plenty of strategy. You could call these hearings proxy hearings. For Republicans, these hearings are a proxy on the philosophy of President Obama. At least five Republicans invoked President Obama's standards for voting in favor or opposed to confirming justices to the Supreme Court. He voted against both Alito and Roberts because he believed that they would not stand up for the little guy in cases where the law was unclear. He even attempted a failed filibuster on Alito.

Just as many Republicans invoked President Obama's "empathy"standard in choosing a justice. Republicans often ridiculed and demonized this standard. Their most common attack was that such a standard perverts the purpose behind being a judge. A judge is, after all, supposed to be an impartial arbitor of the law. Decisions aren't supposed to be delivered by empathy but by the law.

Meanwhile, the Democrats turned the hearing into a proxy attack on Chief Justic Roberts. The most often repeated allusion was to the allusion first used by Roberts himself that judges should be like umpires. They shouldn't make the rules but apply them fairly. This allusion was also used by Democrats as a point of derision of Roberts himself. They brought up such cases as Ledbetter, Heller, and a partial birth abortion case as examples of cases in which Roberts wasn't, in their view, a fair arbitor. In fact, Jeffrey Toobin's scathing column on Roberts was even evoked. (though it wasn't pointed out that Toobin is himself a die hard liberal) According to Toobin, Roberts has voted in favor of the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff in "every major case". (though what major means wasn't identified by eithe Toobin or the Senator)

The Democrats realize that the term "judicial activism" has been most associated with liberal jurisprudence. Democrats went to reset the debate and try and muddy the waters on the term judicial activism. As Senator Feinstein pointed out, judicial activism is often any decision that someone disagrees with.

Democrats mercilessly attacked Roberts prompting Oklahoma Senator Tom Coburn to ask "is this Judge Sotomayor's hearing or Judge Roberts'?".

Ultimately both sides should acknowledge a reality. Even in baseball, umpires don't have one strike zone. In law, especially as it applies to the Constitution, there are so many competing issues all at once that folks of equal humility can judge the same case in a different way WITHOUT NECESSARILY making law rather than interpreting. Just look at the issue of warrantless wiretapping. Someone like me would say that the President has Commander in Chief powers and warrantless wiretaps are a normal part of war making. Meanwhile, the other side would say that warrantless wiretapping would violate the 4th amendment. Is either side making up law? I don't think so that either side is making law. Rather we are both interpreting the law in a different manner.

The Constitution is full of competing powers and areas where different parts of the Constitution compete with each other. There are definitely times when the Supreme Court simply makes law as they did in Roe V Wade. Much more time though, justices choose to find one part of the Constitution as more important than another. That's a lot more about judicial philosophy than it is necessarily judicial activism. Maybe it's time to stop demonizing judicial philosophy we disagree with as judicial activism and simply defend why the part of the Constitution we favor is the one that should rise to the top.

That said, the Republicans have in fact done what I suggested which is to tie Sotomayor to President Obama and turn his judicial philosophy into a radical one. The Democrats have tried to turn the issue of "judicial activism" on its head and turn it against conservatives.

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."

UPDATE:

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.

Sotomayor's Confirmation Is In Sight But...

This week there was a perfect storm of bad news for the confirmation of Sonia Sotomayor. First, on Monday, the now infamous Ricci case was decided by the Supreme Court. The Ricci case, again, is the now famous case in which test results for firefighters were thrown out because not enough minorities scored high enough. The Supreme Court voted 5-4 to overturn Sotomayor's ruling. Of course, as Stuart Taylor pointed out, even those that sided with Sotomayor didn't agree with her judicial logic.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base.

As such, even those that ultimately decided the case for Destefano, like Sotomayor, totally rejected Sotomayor's reasoning for her decision. There can be no greater indictment of her judicial reasoning than that.

Then, yesterday, documents were released by Latino Justice PRLDEF from 1980-1992, the years that Sotomayor served on its board. These documents revealed the group's ties to the radical group ACORN. It also revealed the group's involvement in a lawsuit in favor of a group of Hispanic police officers that challenged the validity of an entrance exam for New York police officer, arguing the exam was discriminatory. This latest revelation, along with her now infamous "wise Latina" comment, and the decision in Ricci form a pattern of an individual that sees the court in racial terms.

Finally, there was this troubling poll from Rasmussen Reports. For the first time, a plurality is now against the nomination. No longer is the narrative about her tremendous life story. Instead, the narrative has shifted to the controversy surrounding the Ricci case and her "wise Latina" comment. The Republicans have effectively defined the nominee. While they may not derail her, the Republicans have done a good job of turning the nomination into a negative for the president. Furthermore, they'll set a marker for the next nominee.

It doesn't appear as though the Republicans will try and orchestrated a filibuster, and the Democrats have more than enough votes to carry the nomination. That said, we have about two weeks until the hearings. Her nomination is losing favor daily. By the time the nomination ends, I have no doubt the nomination will be even less favorable. As such, while Sotomayor may go through, it will be yet another Obama policy that will be viewed unfavorably by the public at large. In fact, by November of 2010, the president will be hard pressed to find any of his policies that will have public support.

Inside the Ricci Decision

The case of the Ricci Vs. DeStefano has become a lightning rod ever since Judge Sonia Sotomayor was chosen to replace Justice Souter on the Supreme Court. Today, the Supreme Court reversed Sotomayor's decision 5-4. The majority opinion was written by Justice Kennedy and two concurring opinions were written by Justice Scalia and Justice Alito. The dissenting opinion was written by Justice Ginsberg.

Justice Kennedy's logic was can be summed up like this. Simply having an overweighted result where white firefighters scored better was not enough to throw the test out. As such, the city would have to show that somehow this particular test was biased. The city never did and thus they violated Title VII. Here's how Kennedy summarized it.

Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment
liability.

Meanwhile, in her dissent, Justice Ginsberg concluded that...

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded
less racially skewed outcomes.1

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971) , which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

Here is how Justice Scalia, in his concurring opinion, counters this argument.

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City's asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.

As such, the majority believes that merely having an overweighted test result is not enough to allow a test to be thrown out because the test must be shown to have racial biases. Meanwhile, the dissent believes that having an overweighted result is in and of itself proof of the test's racial bias. Furthermore, since no firefighters had the right to the promotion, they shouldn't be awarded them. Furthermore, since other cities test's results have created more racially diverse results, that's also proof that other tests should have been used.

The decision itself will likely not do all that much to railroad Sotomayor's nomination. After all, this was 5-4. Furthermore, she is replacing somone that voted the way she would have. What ought to raise many more problems is the depth with which the Supreme Court went in explaining their decision. The decision is 93 pages. Four justices weighed in in writing. Whereas, Sotomayor issued a brief one page decision. What is clear is that Judge Carbones, who scolded Sotomayor for dismissing serious Constitutional issues in her own decision, has been proven right in this case.

Whatever side of the decision they fell on, the Supreme Court certainly believes that there were many significant Constitutional issues to weigh. That was something that Sotomayor dismissed entirely in her own decision. That's what I would focus on if I were the Republicans. Here is Brad Blakeman agreeing with me.

That fact that she was reversed will certainly add fodder for those on the fence and those who oppose her. Some of the more germane questions that should be asked are: 1. Why at the time did you feel that the Ricci Case should have been dismissed on its face and not heard by your Court?, Your decision in the Ricci case was a terse one page decision, yet, the Supreme Court decision was more than 90+ pages going through in depth the Appellant’s Equal Protection and other Constitutional claims, why did you not take up the Appellants Constitutional arguments?

This decision certainly adds to the intrigue of the hearings coming next month.

Sotomayor's "Wise Latina" Stump Speech

According to CQ Politics , Judge Sotomayor made the "Wise Latina" line at least four times in speeches from 1998-2003.

Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested "a wise Latina woman" or "wise woman" judge might "reach a better conclusion" than a male judge.

Those speeches, released Thursday as part of Sotomayor's responses to the Senate Judiciary Committee's questionnaire, (to see Sotomayor's responses to the Senate Judiciary Committee click here and here) suggest her widely quoted 2001 speech in which she indicated a "wise Latina" judge might make a better decision was far from a single isolated instance.

Obviously, had this been reversed and a similar line had been made multiple times by a white man, not only their nomination would be over but they would be a pariah.

Furthermore, this doesn't merely undercut the defense of Sotomayor by the White House and others that this was a poor choice of words, but it blows it up. It puts to rest the Democrat's insistence that this line was taken out of context. There are now four speeches, four sets of context, and yet the same line is in all four. It remains to be seen just how damaging this latest revelation will be. Time will tell.

Even the in the tank media is bound to ask about this revelation of Press Secretary Robert Gibbs. It will be interesting to see how Gibbs responds, and even more interesting to see how the media spins the response.

This frankly should raise serious questions about the nomination itself and also Obama's vetting process, but so far the response has been rather mild. Often, these sorts of revelations take days and even weeks to blow up. These revelations could wind up still exploding as more media picks them up.

More than that, this really crystallizes serious concerns about Sotomayor and her belief in identity politics, racial politics and how those views will affect her decision making on the bench. No more can the Democrats brush these concerns off as fear mongering and demonizing. Clearly, Sotomayor believes that she, a wise Latina, is in a better position to make decisions from the bench than a white man. This can no longer be dismissed by merely saying they were a poor choice of words or an apology. She must explain what this means. Stuart Taylor does a good job of explaining not only the fear but just how out of the mainstream Sotomayor is.

Sotomayor voted with two other judges last year to uphold the city's denial of promotions to white firefighters who had studied hard for months and done well on a scrupulously fair test of job-related skills. But because no African-Americans did well enough to qualify, the city decided that nobody would be promoted, claiming that it feared a "disparate impact" lawsuit by low-scoring blacks. (See May 30 column.)

The Quinnipiac poll showed that respondents, by well over 3-to-1, want the Supreme Court to overturn the Appellate panel's decision. And although the poll shows that this has not yet hurt Sotomayor's popularity much, the case will become more salient later this month. The justices are widely expected to reverse the panel's decision.

None of this is to suggest that the nominee's racially preferential actions put her outside the liberal Democratic mainstream. Quite the contrary. Most liberals are addicted to racial preferences and identity politics.

But this puts liberal Democrats very far out of sync with the overwhelming majority of Americans, including us centrists. President Obama made noises during the campaign that seemed to suggest he understood this. But the Sotomayor nomination -- for all her inspiring accomplishments, powerful intellect, and devotion to the underprivileged -- looks like a strong Obama endorsement of the racial preferences and identity politics that she has supported

Sotomayor must explain her view on racial quotas, affirmative action, and reverse discrimination. She must also explain fully what she means by the "wise Latina" line. The Republicans have a duty to press her on all of these issues during her hearings, and she has a duty to fully explain all these issues. Because Sotomayor's views are way out of the mainstream on all these issues, the Republicans also have an opportunity to score big political points as well.

Now that we all know that Sotomayor made the "wise Latina" line on multiple occasions, it's time that she is pressed on what it means and how it guides her judicial philosophy. I firmly believe that if pressed enough she will show herself to be a judge with a world view and philosophy that is way out of the mainstream. It is the job of the Republicans to do just that.

"Wise Latina" in Redux

Liberal blogger, Greg Sargeant, reports that Judge Sotomayor's wise Latina comment is nearly identical to another comment she made in 1994.

Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion

(Full text here) The spin meisters are already in full effect. Sargeant claims that this will hurt the Republicans because they didn't raise the same issue in 1998 since they then had a copy of this speech. Conservative bloggers are of course saying that this undercuts the idea that "wise Latina" was a poor choice of words since these words are almost identical to this speech. It also raises more questions about their vetting process. Why would they adopt this line if she has said it more than once? It's very likely the administration didn't know about this speech when they made these statements.

Truthfully, all sides will be hurt, though, Sotomayor much more than anyone. Most likely, Republicans didn't read this speech the first time. The due diligence in vetting a Circuit Court judge is infinitesimal compared to a Supreme Court judge. Most likely, while they were given this speech, no one noticed the phrase. Maybe, they did notice and didn't care. So, they would be "exposed" as hypocrites or lazy or both. That's frankly not a shocking revelation about a politician. More than that, no Republican is up for the nomination. The idea that we should all dismiss this new revelation because it shows Republicans to be lazy, hypocritical or both is silly.

I won't call this a game changer because it isn't. It is however an important revelation. It can be used effectively by Republicans to continue to make the point that Sotomayor is driven by racial and identity politics. It undercuts the defense that it was a poor choice of words. It boxes her in to fewer explanations when this comes up in the hearings. It also could prove very damaging depending on how she has explained the comment to Senators so far. If she has adopted the "poor choice of words" line in private meetings, her credibility is undercut with this revelation.

The bottom line is that this is a boon for Republicans. It reinforces the very same narrative they have been drilling since the beginning. The Republicans need to merely augment their message to include something like this "if this was merely a poor choice of words, why did we recently find out that Judge Sotomayor made similar statements in 1994". It gives them even more ammunition and if they use it wisely, it will contribute to a big political victory with this nomination.

The Democrats Pivot on Sotomayor

Politico explains how the Democrats plan to pivot in attempting to define the nominee moving forward.

In defusing the controversy over the “wise Latina” comment, Democrats sought to put the spotlight back on Sotomayor’s extensive legal career, assure the public she was committed to following the law and is not an activist judge.

Typically senators are largely mum about their private conversations with high-profile nominees. But Democratic senators, after watching Sotomayor get ripped for the past week by conservative commentators, chose to reveal much more of their conversations from Tuesday’s closed door meetings.

“What she said was of course one’s life experience shapes who you are,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.), who Sotomayor cleared to give her first public response on the controversy. “But ultimately and completely … as a judge you follow the law.”

Moving forward, the Democrats are likely to stay on a new message and that message is that Judge Sotomayor will apply the law fairly and evenly to everyone. This makes sense to me at least. I would bet that internal polling showed the Democrats that "empathy" wasn't a winning description.

It's rather interesting because the Democrats are describing a judge that a conservative Republican would likely choose. In fact, this new message implicitly rejects President Obama's whole idea for what he looks for in a judge, which is someone that will stand up for the little guy.

It's also one that Republicans can defeat. In fact, if Republicans show some serious political acumen, they can score real political points with this battle. (even if ultimately she is nominated) Ultimately, the "wise Latina" line speaks for itself. There is no amount of walking back, clarification, or explanation that will change it. The Democrats can claim that it was taken out of context but the statement is clear in meaning.

Furthermore, the idea that she wants to apply the law equally to all persons in all situations flies in the face of her decision in Ricci. Was she really applying the law fairly and evenly to everyone when she denied 16 white firemen the right they earned to a promotion?

In fact, Republicans only need to maintain the message they have been hammering since she was nominated. The "wise Latina" comment is "troubling". The decision in Ricci is further proof that Sotomayor's decisions are colored by race and gender, and these two things fly in the face of the assertion that Democrats make that she will apply the law fairly and evenly to all.

Favorable Sotomayor Narrative Forming for Republicans

Here's a quick quiz. After the first two days or say following her nomination, have you heard even one political discussion anywhere about Judge Sotomayor that didn't include an allusion to her controversial comments at Berkeley? I know I haven't. Now, I am here to say that this is totally unfair. No one should be defined by one comment no matter how inflammatory. It's also exactly the narrative that Republicans want as they move forward with the nomination.

It gets even better than that for Republicans. What's the one case most often mentioned when discussing the nomination of Judge Sotomayor? Of course, it's the Ricci case in which she ruled against seventeen white firefighters, including Mr. Ricci a dislexic, who had done well enough on a test to get a promotion but were denied.

All of this actually makes perfect sense. After all, how long could the media talk about her humble roots and rags to riches story? Don't get me wrong. That's still part of the narrative and it's parts relevant, important, and something to admire. Still, her humble roots get lost in the shuffle of these comments and the case.

Both the comments and the Ricci case are inflammatory and so they are potentially quite venomous. Furthermore, short of Rush and Newt, the Republicans have mostly been measured and disciplined in their message. Rather than rushing out to call her racist, they have almost as a group stuck to the term "troubled". Senator Lindsey Graham struck the right tone this morning.

What she said is that based on her life experiences is that she thought a Latina woman, somebody with her background, would be a better judge than a guy like me -- a white guy from South Carolina. It is troubling, and it's inappropriate and I hope she'll apologize.

Senator Schumer responded on another show by downplaying the comments. Schumer said that the comments merely reflect her experience as a poor minority.

Ultimately, all of this is entirely unimportant. Dick Morris once made an astute commet. He said the media doesn't influence opinion by what they say but rather what they cover. In other words, the manner in which the media covers these comments is a lot less important than that they are spending so much time covering it.

Like I have said, we still have two more months at least until the nomination. Furthermore, because of protocol, Sotomayor is very unlikely to speak publicly until the hearings. That means we are for endless analysis of these comments for two months without the one person necessary to really be able to explain them able to speak.

Now, it's still an overwhelming possibility that Sotomayor becomes a Supreme Court Justice. Still, if Republicans are able to make the next two months a narrative over these comments and the Ricci case, they will have won an important battle. That's because with it there will be a national debate on identity politics, activist judicial philosophy, and affirmative action and other quota systems. All of these are debates that Republicans will win. The public would then be likely to reject Sotomayor even if the Senate does not, and President Obama's radical philosophy will be on display. All of this is good for Republicans even if they ultimately lose the vote.

Sotomayor's Confirmation is No Lock

Yesterday, for the first, the White House acknowledged that Judge Sonia Sotoymayor's comments in 2001 in Berkeley when she remarked that she, a Latina female, would make a better judge than a white male were a political liability. Here's how Robert Gibbs characterized it.

I think she’d say that her word choice in 2001 was poor.”

“She was simply making the point that personal experiences are relevant to the process of judging, that your personal experiences . . .have a tendency to make you more aware of certain facts in certain cases, that your experiences impact your understanding.”

Here's the president speaking about it.

Yesterday, prior to the White House's trackback, I surmised that this comment could be used as part of a strategy to build a narrative of a Judge that views the world in racial terms and makes decisions from the bench as such. It still can and all Republicans need to do is pivot slightly. In fact, if the Republicans are politically savvy, they can constantly stay a step ahead of the White House on this. So far, they have in fact been winning the public relations battle. After all, the White House wouldn't even have addressed the comments at all if they didn't see them as a political liability. They did so only because Republicans were getting traction out of them.

Here's the reality. If these comments truly were a poor choice of words or taken out of context, Judge Sotomayor should have walked back from them years ago. It is rank political opportunism to eight years later now claim that they were chosen badly. If that's the case, Judge Sotomayor should have said so long ago. If I am Republicans, that is the way I characterize things now. I would continue to use the term "troubling" in characterizing the comments themselves. I would say that the White House now stepping back from them is merely a sign that they recognize that the comments are a political liability. Furthermore, it is awfully convenient that only now are they saying these comments were poorly chosen and that smells of rank opportunism.

What really helps the Republicans in this whole thing is the custom that the nominee not speak to the media until hearings. Ultimately, the best person to clarify what they meant is Judge Sotomayor herself. Yet, she isn't allowed by custom to speak until the hearings. That could be two months or more from now. Until then, the Republicans continue to have a message that they can stay on point with. Meanwhile, to rebut this narrative, the Democrats will have to send in surrogates like both Gibbs and President Obama. Surrogates are of limited value. In order for this controversy to really die down, the nominee herself must fully explain what she meant and she can't do that until the hearings.

In the meantime, the Republicans should continue to build the case that her comments raise troubling issues that question whether or not she will treat all races the same from the bench. This view is reinforced by her decision in Ricci and the White House's sudden admission that these comments were merely a poor choice of words is really nothing more than rank opportunism. If this is the case, that's something that would have been acknowledged years ago when it wasn't politically expedient.

In order to derail the nomination of Sonia Sotomayor, the Republicans need to get the public to see that these comments are no different than if they were flipped around and said by a white male. In order to do that, they need to stay on message and continue to say so over and over. It's no doubt that they White House will attempt to walk her back from them over and over. The way I see it though is that it is too late. There is no longer any walking back. Sotomayor had eight years to do that. Now, the Republicans only need to adjust their message slightly as the White House engages this to respond to anything they may say. The overriding narrative they need to build remains the same. These comments reveal a world view of a judge that doesn't treat all races equally. That world view is reinforced by Ricci (not to mention her membership in La Raza, the Race, though I wouldn't necessarily focus on that if I am a Republican) and any attempt now to walk back is pure political opportunism.

How Republicans Can Turn Sotomayor's Identity Politics to Their Favor

Last night's event between James Carville and Karl Rove, crystallized for me the manner in which each side will frame the debate over Judge Sotomayor. Karl Rove said he was troubled by this comment.

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Rove used the term "troubled" over and over. That's the correct term because it isn't inflammatory and yet it stresses the seriousness of the comment. Rove then linked this comment to her decision in Ricci.

Carville said it was "cool that the first black president is nominating the first Hispanic judge" and that her life story is inspiring and she's well qualified.

So, it's clear that Republicans will want to paint Sotomayor as seeing the world far too often in racial terms and using that vision to make policy while Democrats will play identity politics. So, in reality, both sides are essentially trying to land in the same place and so it comes down to marketing.

The Republicans have two things to market more than anything. First, it is these comments themselves. Every Republican that I have seen has done the exact same thing. They flip the comments around to a white person and ask rhetorically what would happen. This is a powerful argument. The Republicans have a serious advantage here. First, there's no one that is defending this statement. The White House claims it was out of context but no one is defending it on its merits. Second, traditionally, the nominee isn't supposed to go in front of the media until after the hearings are done. As such, Sotomayor is in no position to define or correct the statement. That means that Republicans have at least two months to hammer at this statement with no response. Define Sotomayor with this statement and you define her as a judge that sees her role in racial terms.

The second weapon is even more powerful. That weapon is Frank Ricci. He's the white firefighter that was denied a promotion based on a ruling that Sotomayor made. Frank Ricci has a poignant life story of his own. Here's how Charles Krauthammer described it.

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a juniorfirefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day, and, because of his dyslexia, hired someone to read him the material.He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.

Now, remember, President Obama voted against both Roberts and Alito because he believed they favored the big guy over the little guy. Now, in this case, it is Frank Ricci that is the little guy. It is the city of New Haven that is the big guy, and yet, Sotomayor dismissed the case without even writing an opinion against Ricci. That Ricci is dislexic mattered not. That he quit his second job to study for this test mattered not. That he hired someone to help him read through the problems mattered not. That he did well enough on this test to warrant a promotion also mattered not.

This case is very simple. The city of New Haven offered an exam to promote several of its firefighters to lieutenant. Frank Ricci saw an opportunity to advance his career. He sacrificed a second income, overcame a disability and ultimately he did well enough to get a promotion. Unfortunately for Ricci, the overall results of the test didn't fit the view of a politically correct society. That none of this is his fault matters not. In the world of Sonia Sotomayor political correctness and racial politics are more important than a sympathetic person that frankly deserves to win.

This ruling paints the picture of someone that doesn't so much see the world as the little guy versus the big buy, but rather as Blacks versus Hispanics versus Whites. By this ruling, she doesn't so much have empathy for the little guy but for the minority and her other comment lends credence to this narrative. The Republicans have an opportunity to paint Sotomayor as someone that sees the world in racial terms and will judge that way. In fact, Ricci himself should be a witness during her hearings. Furthermore, Democrats defining her as Latino only reinforces that position.

Frankly, to be successful, the Republicans need to take Rove's playbook. Unlike Newt and Rush, he never called her racist. Instead, he said he was troubled. For the next two months, the Republicans need to be a broken record. They need to bring up the remarks. They need to flip the remarks around, and then they need to announce they are troubled by them. Then, they need to recount the story of Frank Ricci. Ricci is a firefighter who overcame dislexia. He studied day and night, quit his second job, and even hired someone to read the material to him. Then, he did well enough on the test to be promoted only to be denied by Judge Sotomayor who sees political correctness as more important than fairness and achievement.

Here again, the Democrats strategy on this plays into the Republicans hands. Let the Democrats be the broken record of Sotomayor being the first Hispanic judge. Yes, she's the first Hispanic judge who also believes she should govern as a HISPANIC judge. To her, justice isn't blind but racial. That's the narrative built by her comments and this ruling, and it's the narrative reinforced by the Democrats' identity politics in this matter. This offers the Republicans an opportunity to expose it for what it is.

Empathy and Consensus Building

Over the next few weeks, when debating the validity of Judge Sotomayor, we are likely to hear the term consensus builder. The term consensus builder is actually a fancy term for being able to convince other justices that your position is correct. Obviously, no one knows whether or not Judge Sotomayor will in fact be a consensus builder. Let's think about Sotomayor's supposed empathy and how it will help build consensus.

Now, how will an argument built on empathy help to build consensus? First, her empathy is clearly with minorities and females only. After all, the Ricci case showed that Sotomayor's empathy ends when it comes to a majority class. Since Ruth Ginsberg is the only other woman, it's unlikely that she will sway any other judge through "empathy". Since Ginsberg would be the equivalent of preaching to th choir, Sotomayor wouldn't be building consensus with an "empathy" argument.

Anthony Kennedy, a white male, appears to be the swing vote currently. Why would a white male be swayed by an argument of "empathy" from a Latina woman? So, in fact, if it's empathy that President Obama wants from Sotomayor, it's also likely an argument that won't sway anyone. The "empathy" argument is likely one that won't build much consensus on this court and frankly on most courts. It's yet another reason why empathy is not much of a qualification for being on the Supreme Court.

Consensus building on the Supreme Court happens by strong arguments on the law and on the Constitution. That's how you sway another judge that is on the fence. You do it by making a strong argument about the Constitution and the way it is applied to the facts and the law in any particular case. It isn't built by showing empathy for one group or another.

Judge Sotomayor: The 2nd Amendment Collectivist

The 2nd amendment is among the most hotly debated portion of the U.S. Constitution. Among the most basic debates is the issue of whether or not the 2nd amendment guarantees an individual's right to carry firearms or is only for an organized group. Because of the wording of the actual amendment, there is some room for interpretation.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Here is how I analyzed the debate over this amendment.

Now, the allusion to the militia combined with the use of the words "the people" has allowed gun control advocates to make the argument that the second amendment was meant only to protect organized state militias.

In my opinion, this is a nonsensical argument made cynically and disingenuously by folks with an agenda. I think the founding fathers used wording that none thought at the time would create controversy and yet more than two hundred years later we are still embroiled in controversy.

...

On a practical level, none of the amendments to the Constitution are amendments that give rights to the government, but rather to the people. In order to believe that the second amendment is collectivist, you would need to believe that for unknown reasons the founding fathers wanted to enumerate rights to the government among in the second amendment, even though each and every other amendment enumerates rights to the people itself.

Evidence is coming out that Judge Sotomayor is not only a collectivist but with a history of being against the 2nd amendment. The first piece of evidence was her college thesis. The thesis entitled, Race in the American Classroom, and Undying Injustice: American "Exceptionalism" and Permanent Bigotry, and Deadly Obsession: American Gun Culture, made this assertion.

In this text, the student Sotomayor explained that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms, but only duly conferred organizations, like the military. Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.

This is a standard boiler plate collectivist argument. That said, this thesis was nearly 30 years ago. Judge Sotomayor wrote an opinion significantly more recently that lends more credence to her collectivist credentials. The case is Maloney V Cuomo. This case challenged the state of New York's 30 plus year ban on numchuks. In writing her opinion, Judge Sotomayor stated this.

United States Court of Appeals for the Second Circuit affirmed the decision of the court below, finding that U.S. Supreme Court precedent from 1886 (Presser v. Illinois) was still good law, and that the Second Amendment does not apply to the states. The Second Circuit also found that New York has a "rational basis" for prohibiting the possession of nunchaku in general.

Now, the idea that Sotomayor believes that the 2nd amendment only applies to the FEDERAL GOVERNMENT is one that raises a lot of troubling issues. For instance, if she believes that the 2nd amendment only applies to the federal government, how does she feel about the first amendment? Does she believe that a state government can engage in censorship? It wouldn't be logical to not believe this if she believes the 2nd amendment doesn't apply to states but only to the federal government.

Second, what are her views on the tenth amendment?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Generally, we view the tenth amendment as a state's rights issue. In that, we believe that all that isn't enumerated in the constitution is left to the states. Yet, it is clear from the text that states have no rights to make policy in anything that is specifically prohibited in the Constitution. The 2nd amendment is one such issue. If the 2nd amendment gives every individual the right to bear arms, how can Judge Sotomayor say that it only prohibits the federal government from infringing on this right?

Such a view would effectively dilute the idea of any rights. If Judge Sotomayor sees the 2nd amendment as only a federal government issue then effectively there are no rights. That's because by her view the states can effectively infringe on any right enumerated in the Constitution. A state could pass a law in conflict with the fourth amendment and allow warrantless searches and Judge Sotomayor would say that the 4th amendment only applies to the Federal government.

If you want to know just how dangerous an activist judicial philosophy is it is embedded in the idea that a right enumerated in the Constitution only applies to the Federal government. Such a view of the Constitution could lead a judge to essentially make nearly any law anywhere Constitutional.

Opposing Sotomayor and Scotty Nguyen's 1998 WSOP Win

Scotty Nguyen's 1998 victory at the WSOP was likely the greatest and certainly most famous last hand. Here's the video.




With a full house on the board, Nguyen dared his opponent, Kevin McBride, to call him after Nguyen went all in. Nguyen could only hold one card to win. Scotty was in fact holding the fourth 9 in his hand and he became champ. McBride graciously admitted that he only called because of Nguyen's taunts.

Well, it seems were now getting the political version of those types of taunts from Democrats toward Republicans. Here is Chuck Schumer.


Stuart Taylor deconstructs the political conundrum facing the Republicans.

The Republican dilemma is underscored by the fact that the Sotomayor actions they might be most eager to attack are themselves especially likely to engage the sympathies of Hispanic voters.

In a 2001 speech that I have criticized, for example, Judge Sotomayor suggested that
"a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." This will strike many Republicans as the essence of the ethnic and gender stereotyping that liberals once properly abhorred.

But with Republicans already in danger of being seen as the white-male party, rushing to the defense of white males may not be a winning argument politically.

Consider also Judge Sotomayor's assertion in the same speech that "the aspiration to impartiality is just that -- it's an aspiration, because it denies the fact that we are by our experiences making different choices than others"; and her suggestion that impartiality may be impossible "in most cases"; plus her implication that "by ignoring our differences as women or men of color we may do a disservice both to the law and to society."

These statements may seem to many Republicans and centrists to reek of identity politics and exude the potential for judicial bias. But again, attacking a Hispanic woman

To say that this is both unfair and hypocritical is an understatement. The Democrats shamelessly opposed Miguel Estrada and filibustered his nomination. Had he been confirmed, Estrada might already be sitting on the Supreme Court and certainly he would be on every short list the next time there is a Republican President. Of course, fairness and politics are two mutually exclusive things.

So, let's not focus on what should be but on what is. The Democrats would like nothing more than for Republicans to challenge Sotomayor, especially on the hot button racial issues, because that allows them to play racial politics. Republicans have already lost favor with Hispanics over immigration and Democrats are looking for another reason to paint Republicans as anti Hispanic. The uglier the fight were to get the more this perception would be advanced.

Any opposition to Sotomayor could itself be viewed as anti Hispanic. That's just reality in our identity politics. More than that though is the issue surrounding this quote.

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,

Make no mistake, Hispanics are very territorial. I once spoke to a Hispanic Republican strategist and they offered me the difference in talking points when speaking to Hispanics. They told me that they would attack Obama to a Latino audience by pointing out that Latinos fill only marginal seats in his administration. In many ways, it's all about paying respect to their race.

So, make no mistake, to some Latinos merely attacking Sotomayor would be viewed as a slight to the race itself. Furthermore, attacking this comment would also be viewed the same way. That's not right or fair but it is reality. Anyone who thinks my comments are racist in nature ought to look at the obscene amount of times her race has been mentioned by proponents. It doesn't so much matter to me, but proponents can't go a minute without mentioning it.

So, opposing Sotomayor must take all of this into account. The best way to do this is frankly to ask questions respectfully. It's to make all criticism based on philosophy, temperament, and qualifications. Furthermore, Republicans need to reserve all judgment until after all the hearings. It's not only inappropriate but politically unwise to come out against Sotomayor until after the full hearing is aired. Frankly, the best way for Republicans moving forward is to self impose an embargo on mentioning her race entirely. Let the Democrats remind everyone at every turn that Sotomayor is Latina. The Republicans need to focus on everything else. That's how I would mine this field.

Ricci Vs. Destefano and the Selective "Empathy" of Judge Sotomayor

The most controversial case emerging from decisions made by Judge Sotomayor appears to be the case of Ricci Vs. Destefano.

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. (“IOS”) to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the “rule of three,” once test results are “certified,” the Department must promote from the group of applicants achieving the top three scores.

Immediate application of the “rule of three” to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants’ pass rate on the lieutenant exam was approximately half of the rate for white applicants – a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams’ results.

Because of these outcomes, the City’s independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed “adverse impact” and that he could design tests with less disparate results and better measuring the jobs’ requirements. He also conceded that the City’s tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

Eventually, because no one of color scored high enough, the tests were thrown out and a new test was administered. Soon after, the white firefighters that had their promotions reneged sued the city over what is effectively reverse discrimination.

The case eventually wound up in front of Judge Sotomayor and here is how she dealt with it.

Only just recently, in Ricci v. DeStefano, Judge Sotomayor was chastised by fellow Clinton-appointee Jose Cabranes for going to extraordinary lengths to dispense with claims of unfair treatment raised by firefighters. Judge Sotomayor’s panel heard a case raising important questions under Title VII and equal protection law, but attempted to dispose of the firefighter’s arguments in a summary order, until called out by Judge Cabranes. The Supreme Court has agreed to review the case.

Let's leave aside for now the legal and constitutional issues. Where is Judge Sotomayor's empathy for these white firefighers? It's hard enough getting ahead without having to deal with politically correct bureaucracy that decides that your scores aren't good enough because not enough minorities did well with you. These firefighters didn't create the test. They merely did well on it and yet their promotions were reversed because of nothing more than political correctness.

This is a loss in professional stature and income and these firefighters had their lives disrupted. Yet, Barack Obama says that he wants a judge that has empathy. Well clear, she doesn't have empathy for these firefighters. Judge Sotomayor says that she is aware that her rulings have real world effect. Well, what was the effect of her ruling on these firefighters?

Of course, all of this is all nonsense. These firefighters shouldn't have won because someone had empathy for them. They shouldn't have won because the judge understood that they would be adversely affected by a ruling against them. They should only have won because the law was on their side in the matter.


What's absurd is not only the idea that a judge should have empathy or even worse, that Judge Sotomayor has any more than any other judge. She only has empathy for the sort of people that President Obama seems to want to have empathy for. In the case of these white firefighters, her empathy was lacking. Frankly, that would be fine with me if she applied the law. What this case really shows is not only the absurdity of "empathy" in the judiciary and that somehow Sotomayor has any more empathy than anyone else.

Empathy and Consensus Building

Over the next few weeks, when debating the validity of Judge Sotomayor, we are likely to hear the term consensus builder. The term consensus builder is actually a fancy term for being able to convince other justices that your position is correct. Obviously, no one knows whether or not Judge Sotomayor will in fact be a consensus builder. Let's think about Sotomayor's supposed empathy and how it will help build consensus.

Now, how will an argument built on empathy help to build consensus? First, her empathy is clearly with minorities and females only. After all, the Ricci case showed that Sotomayor's empathy ends when it comes to a majority class. Since Ruth Ginsberg is the only other woman, it's unlikely that she will sway any other judge through "empathy". Since Ginsberg would be the equivalent of preaching to th choir, Sotomayor wouldn't be building consensus with an "empathy" argument.

Anthony Kennedy, a white male, appears to be the swing vote currently. Why would a white male be swayed by an argument of "empathy" from a Latina woman? So, in fact, if it's empathy that President Obama wants from Sotomayor, it's also likely an argument that won't sway anyone. The "empathy" argument is likely one that won't build much consensus on this court and frankly on most courts. It's yet another reason why empathy is not much of a qualification for being on the Supreme Court.

Consensus building on the Supreme Court happens by strong arguments on the law and on the Constitution. That's how you sway another judge that is on the fence. You do it by making a strong argument about the Constitution and the way it is applied to the facts and the law in any particular case. It isn't built by showing empathy for one group or another.

The Early Conservative Line of Attack On Judge Sotomayor

I didn't want say much until the pick was chosen because speculation seems to be a useless exercise. Why discuss the qualities of a nomination of someone that hasn't been nominated yet. That said, I did lay out the general strategy that the Republicans should follow in the debate that will follow the nomination. The choice of Sotomayor doesn't really change that strategy at all. Obama's choice of Sotomayor needs to be placed in the context of his overall radical agenda. The Republicans have an opportunity to frame this choice as part of an overall radical redistributionist agenda that, done correctly, will help build a narrative for 2010.

There are three very obvious things for the Republicans to attack. The first is this video.



In it, Sotomayor intuitively acknowledges that what she said is controversial by proclaiming that she knows this is being taped. She makes the assertion here that appeals court justices make policy. Of course, that isn't how the Constitution intended it. The Congress makes policy. The Court System is supposed to judge the Constitutionality of said policy. If I am the Republicans, I would come up with as many questions as possible related to this video. Remember that Ted Kennedy used his entire 15 minutes to hammer Justice Alito over his membership in some organization at Princeton. I believe that either Sotomayor will tie herself up in knots trying to explain this or she will simply walk herself back and say something totally different than what she said in the video. Either way, a serious lack of credibility can be created.

The second is this statement.

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.

This is not only offensive but frankly racist. I am really sick and tired of minorities getting away with patently racist comments that whites would never get away with. Flip that statement around and replace white with latino and vice versa and see just how offensive it would be. I tracked a similar phenomenon with Sun Times Columnist Mary Mitchell. In one column, Mitchell said this.

white people don't get it, black people do, now it's time to move on

Now, imagine a white person saying the opposite. What Sotomayor said should be offensive to everyone and she must be held to account. Her comment is indefensible and so she would either walk back from it or tie herself in knots trying to explain it. Either way, it is something the Republicans need to explore fully.

Also, Sotomayor has a very sketchy record on the Second Amendment. In a decision in the case of Maloney v. Cuomo, Sotomayor ruled that states and municipalities are well within their rights to ban gans because the 2nd Amendment only applies to the federal government and not to states and municipalities. This is a position that needs to be explored. The 2nd Amendment is among the best so called wedge issues for Republicans.

I would also ask Sotomayor about President Obama's judicial philosophy. I would be curious to see how she responds about her views on "empathy" on the bench. How would she apply empathy on the bench? Does she believe that the Supreme Court should be a tool of social justice? How would she apply social justice in decision making?

The Constitutional ramifications of all of this are huge. Such a philosophy sees a very expanded power of the federal government in applying all of these principles. Sotomayor is likely to have very little regard in state's rights, for instance, when those states apply those rights in a way that doesn't benefit the poor. She likely sees the power of the federal government to be far beyond that which is enumerated in the Constitution. For instance, a strict constructionist would see universal health care as unconstitutional since the power to provide health care isn't enumerated in the Constitution. Sotomayor would take the opposite position.

By November 2010, I believe that more than not, the American people will tire of all of the massive government expansion and power. There are only so many industries that the government can run before the people turn. The choice of Sotomayor can be used as a part of larger narrative of a White House drunk on power with a very expansive view of its authority. The time to start building that case is with this pick and I have laid out the guidelines to do this.