28 May 2009

Can Sotomayor be borked?

As the in-fighting among Republicans continues, the moderates think conservatives should capitulate and permit the confirmation of Judge Sotomayor without a fight. This, because it will harm the party to be seen objecting to the appointment of a hispanic woman to the Supreme Court.

Conservatives seem to think she should be borked for these offending remarks (among others):



H/T: Althouse

Much more informative, however, is the fuller clip:



A lot has been made of the fact that she says courts of appeals are where policy is made. There is really a much, much more important, much more revelatory comment here. It is the part (about 1:25 minutes in) where she outlines the role of the court of appeals in determining the next step in the development of the law. In other words, we are talking legal trendline analysis, probably not too different, as a conception, of Justice Holmes' notion that law is simply a prediction of what courts will decide. I'm going to post on the subject of historical trends, in the near future. (In fact, I've been working on that post for over a week now.) But for now let us note that the whole business of Obama's desire for justices with empathy and the importance -- to some -- that she is both hispanic and female is not quite as important as this statement of the nature of jurisprudence. At the court of appeals, the law is not being applied; it's "percolating". At that level of adjudication, the law has no being (if you will); the law is becoming. Indeed, it is always becoming. The question is, as Sotomayor says, what is the law becoming.

It is important to understand this, because, as Ann Alhouse says, conservatives should use this time to teach conservative interpretive principles, which means setting forth clearly what liberal interpretive principles are:

Here's what I think conservatives should do: Accept that she will be confirmed, but use the occasion to sharpen the definition of conservative judicial values and to argue to the American people that these are the better values. ~ Here, emphasis mine.
In a subsequent posting, responding to something Rush Limbaugh said on his show, she says:

If confirmation is about agreeing with the ideology, then Republicans might want to vote against Sotomayor. But confirmation should not be about ideology, and conservatives ought to want to prove that principle by their votes. Use the confirmation hearings to delineate what liberal judicial ideology is and why people ought to reject it. Then get a good presidential candidate for 2012 and make Supreme Court nominations an issue. Is that too hard? Does that take too long? Too bad! You say you want a Justice who will tell the truth about what the Constitution means. But here's something about what the Constitution means: The President has the appointment power.
It will be difficult for conservatives to follow Althouse's advice (which they should do) without understanding the crucial conception of historical trends. It might also help if conservatives better understood the difference in conceptions of rights (and therefore of justice) between left and right. They both use the words "rights" and "justice"; but they really do not mean the same thing by these words. And that's why I really can't fully agree with Althouse that confirmation should not be about ideology. (She'd be so disappointed to know that, I'm sure.)

Speaking of Limbaugh, and, more importantly, of conceptions of "rights", he has a transcript of 2001 radio interview in which Obama, discussing redistribution of wealth and how the Supreme Court's never gotten into it, complains of the Constitution's "negative" liberties.

OBAMA: If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples so that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I'd be okay. But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society.

[...]

As radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution at least as its been interpreted and the Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf, and that hasn't shifted, and one of the tragedies of the civil rights movement was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And in some ways we still suffer from that.
Most conservatives, Limbaugh among them, will likely focus on His Beatitude's talk of "redistributive change". But that is really not the most important thing; it's not the element needing attention. What needs attention is the notion of "positive" rights, because there is little point in arguing for "redistributive change" unless one first presupposes that there are "positive" rights.

Also important is Obama's clear indication, in 2001, that he had no interest in presiding over the government created by the Constitution -- the government created by the States. Note his assertion that "the Constitution is a charter of negative liberties, [which] says what the states can't do to you, says what the federal government can't do to you, but...doesn't say what the federal government or the state government must do on your behalf." That's true, because the Constitution didn't create a government which had duties to do anything, or at least much of anything, on our behalf. He wanted, and wants, a government other than the one created by the Constitution he affirmed to protect and defend. The nomination of Sotomayor is less about her being a woman, even less about her being hispanic, than it is about His Beatitude's desire to preside over a government with a constitution which protects "positive" rights.

But her being a woman, and her being hispanic, is useful. It is useful because in objecting to her appointment on ideological grounds it will still also be true that Republicans, though not technically, object to the appointment of a hispanic woman to the Supreme Court. It just won't be true that they object to her appointment because she's a hispanic woman. Despite the Democrats' borking, on ideological grounds, of Miguel Estrada.

Dems bork. Republicans capitulate. What a joke.

Can she be successfully borked? No. Republicans, especially the conservative kind, just are not as good at it as Democrats; and they shouldn't try to be, either. They should press her -- hard -- on those ideological matters. She should be grilled on the task of the appellate judge, anticipating the next step in the development of the (judge-made) law. She should be asked questions the answers to which will elucidate the nature of "positive" rights, especially that fact that "positive" rights mean involuntary servitude. She should be asked a lot of questions, questions about the law and its application, jurisprudential questions. But I hope we don't have any of that "In-Sonia-Sotomayor's-America" crap that Ted "Splash" Kennedy dumped on Judge Bork. Please, ye gods and goddesses, not that. (Well, not on the floor of the Senate anyway.)

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James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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