Wednesday, May 27, 2009

Could We Move This Industry To China?

With the announcement of Judge Sonia Sotomayor yesterday as President Obama's nominee for the Supreme Court, the usual nonsense has started in earnest regarding her qualifications. As SCOTUS Blog points out:

The attacks are inevitable and tremendously regrettable, just as they were for Chief Justice Roberts and Justice Alito. A cottage industry – literally an industry, given the sums of money raised and spent – now exists in which the far left and right either brutalize or lionize the President’s nominees. Because the absence of controversy means bankruptcy, it has to be invented by both sides, whatever the cost to the nominee personally and to the integrity of the judiciary nationally.

The Dynamic of the Nomination of Sonia Sotomayor

It's hard to imagine a cottage industry that's been less productive. How many Supreme Court nominees have been blocked by them? I can only think of two offhand - Harriet Meiers and Robert Bork. Since Bork's nomination was withdrawn back in the '80s, there have been nearly an entire Supreme Court's worth of people nominated and confirmed. The best you can say about this industry is that it makes Presidents vet their nominees more thoroughly.

That doesn't stop them from trying to prove their worth, though. The right-wing portion of this industry are already pumping out nonsense about Sotomayor. Here's an example, helpfully passed along by The Washington Times:

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.

Sotomayor Reversed 60% By High Court

As someone noted in the part of this article that most people don't bother to read, this is an absurd argument. Sotomayor has been part of 380 decisions in the court of appeals. That translates to a reversal rate of less than one percent, if you want to get pseudo-technical. What's more, the rate at which her decisions would be reversed at a fairly high rate are obvious, once you think about them:

* The Supreme Court (SCOTUS) chooses to hear cases or leave them unchallenged. If they hear them, it's much more likely that some of the justices, at least, have a problem with the decision. Note that the sixty percent figure the article mentions are for those SCOTUS actually chose to hear.

* SCOTUS is now stacked with conservatives. A moderate or liberal judge, and surely Sotomayor belongs to one of those two categories, would be more likely reversed than a conservative one.

All this is pretty obvious, but you can bet that 60 percent figure will be bandied about quite a bit.

As you might imagine, Glenn Greenwald has made a number of observations about Sotomayor in the last two days. After quoting conservative Justice Sam Alito's testimony before the Senate at length, he goes on to observe:

Anyone who is objecting now to Sotomayor's alleged "empathy" problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned (and the same is true for someone who claims that a person who overcame great odds to graduate at the top of their class at Princeton, graduate Yale Law School, and then spent time as a prosecutor, corporate lawyer, district court judge and appellate court judge must have been chosen due to "identity politics"). And the idea that her decision in Ricci demonstrates some sort of radicalism -- when she was simply affirming the decision of a federal district judge, was part of a unanimous circuit panel in doing so, was supported by a majority of her fellow Circuit judges who refused to re-hear the case, and will, by all accounts, have at least several current Supreme Court Justices side with her -- is frivolous on its face.

Justice Sam Alito On Empathy And Judging

Let's ignore for the moment that Alito has displayed very little of that empathy on the bench so far. He said he thought it was a good thing to have. I'd say if anything, he and some others on the Supreme Court could use more empathy, not less. Still, there's the obvious hypocrisy just staring us in the face here.

One of the ironies of this situation is that I'm still not sure whether I like Sotomayor as a nominee. As Ian Welsh said yesterday, there are reasons for low expectations:

So, Obama has made his decision, and it’s Sotomayor. While my Hispanic acquaintances are all thrilled to bits, the fact of the matter is that she’s not much of a liberal. Like Obama, she’s a centrist. She will stand up for programs like affirmative action and will vote to keep Roe, which is good, but she won’t be anything special.

Sotomayor - Nothing Special, But Not Awful

So far, that's my expectation. Any reasoned look at Obama's decisions on the economy and health care would suggest that he's not going to buck corporate interests, particularly those of the country's financial institutions. I'd expect his first nominee to the Supreme Court to reflect at least some of those values. Still, I'd like to think that we're at least discussing issues like that. As both Greenwald and SCOTUS Blog pointed out, we don't know much about Sotomayor's views on the power of the executive. We don't know much about her views on government secrecy, either. Those are things that are important, yet we're discussing nonsense instead.

I think that this is one industry that I wouldn't mind seeing moved offshore.

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