“The ‘Empathy’ Nominee,” sneers the Wall Street Journal. A “Reverse Racist [like Obama],” chortles Rush. A “liberal activist who can’t be opposed because she’s a Hispanic ‘she,’” intones Kathryn Lopez. “Maria Sotomayor,” slips Huck PAC. The Right has certainly fallen in line over the nomination of Judge Sotomayor, but so too has the Left. To the New York Times, she is “an inspired choice,” possessing, to Lani Guinier, “a compelling and distinctly American story.” The predicable camps are being just that.
The only thing interesting, when a smart and presumably rational actor brings about a predictable response from others, is why he chose to do so. And this is most definitely so when the independent actor primes the waters for a particular response, as President Obama did in announcing that he was seeking a nominee with “empathy.” It is certainly possible that the President prizes empathy as principally as he suggests and believes Judge Sotomayor, separate from all of the politics of her nomination, the best person for the job. But, particularly because the nomination of Supreme Court justices is what game theorists would call a multi-actor repeated game, it is also quite possible that neither is the case.
First, by emphasizing empathy and by so conscientiously touting the judge’s biography, the President has assured the terms of the debate and radicalized his critics. This has already resulted in Rush Limbaugh further alienating Americans who support affirmative action, even when practiced voluntarily by private actors. The President has thus created a “heads I win, tails you lose,” scenario. Sotomayor will either be confirmed over the protests of those who diminish the relevance of her personal history, but who are heard by the masses as diminishing the history itself. Or she will be defeated or withdrawn, with Republicans having alienated the country’s fastest growing ethnic group and leaving the President the opportunity to choose perhaps a less biographically-impressive but more intellectually-formidable nominee.
This points to why the Sotomayor nomination makes sense in the context of a repeated game. Chances are the President will face two or three vacancies during his first term. And let’s say that he really wanted to nominate to the Court his close friend and now head of the Office of Information Affairs, Cass Sunstein, a legal scholar whose intellectual credentials are unmatched by any others reportedly on the “short list.” (Brian Leiter reports that Sunstein was the most cited law professor between 2000 and 2007 in the field of Constitutional and Public Law, with more than 75% more citations than the next most cited person, Laurence Tribe.) What would be the best strategy to get Sunstein on the court?
Would it be best to nominate him first, when interest groups, ginned up to oppose the first person down the pike, would comb Sunstein’s scholarly works for evidence of immoderation and turn the already hot Washington summer into a referendum on jurisprudence? Or would it be better for Obama to make a “biography pick” first, expose himself to the charge that he’s only interested in identity politics on the Court, and answer those critics when the second vacancy appears by nominating an ivory tower Jewish male? Resistance will nonetheless be fierce, but opponents will be in a weaker position for having shifted strategies, whereas the President will be in a stronger position by appearing to have addressed the previous concerns.
Considering this context, the optimal strategy for conservatives most concerned about the eventual appointment of a Sunstein-like figure to the Court (and his likely far greater influence on the law than Judge Sotomayor) would be to avoid any debate about the relevance of her biography and keep their focus on competence, judicial experience (of which Sunstein has none) and jurisprudence. Doing so may be impossible in the current environment, for playing identity-politics, both on the Right and the Left, is a heck of a lot easier than debating judicial philosophy. And, as Rush knows, it sells.
20 responses so far
1 ModerateGal // May 27, 2009 at 9:05 pm
Why do so many of the authors of the articles on this site have pen names? Are they ashamed of what they have written? Man up already and put your name on your work. I can’t take the writings of any anonymous authors here seriously if they don’t believe in what they have written, either.
2 A. Wilson // May 27, 2009 at 9:44 pm
The empathy factor and the reverse racist factor IS central to her “judicial philosophy”. She has said and demonstrated as much herself.
The implication that the criticisms by the WSJ and Rush are somehow below the belt or not relevant in terms of her fitness for this job is unfounded.
The only reason race is a factor is because SHE has improperly played that tired card, apparently to cover for weaknesses elsewhere.
3 krove // May 28, 2009 at 4:56 am
ModerateGal wrote.
9:05 PMWhy do so many of the authors of the articles on this site have pen names? Are they ashamed of what they have written? Man up already and put your name on your work. I can’t take the writings of any anonymous authors here seriously if they don’t believe in what they have written, either.
The answer is because they are all the same person David Frum. He does not want to put his name on everything here or it would look like a one man band.
4 InTheMiddle12 // May 28, 2009 at 5:08 am
The arguments being made against Judge Sotomayor, after having researched all the talking points, are so shallow it’s almost embarassing to the GOP if they continue.
It seems that once again President Obama, as did Candidate Obama, absorbed an attack that reflects more on those that attacked him than on his decision. Until the right gets a better handle on how the President makes decisions, they’re going to continue to end up with these ridiculous Rush-led attacks, eg “reverse racist.” What nonsense.
5 ottovbvs // May 28, 2009 at 6:35 am
This is indeed Obama’s latest Rope-a production and the Dopes are rushing to fill their appointed roles. It’s all Kabuki theater. She’s a shoo in to be confirmed absent infanticide in her background so you have to wonder what the far right get out playing the Dopes. I see what the tv/radio loudmouths get but apart from a few more contributions what else is in it for conservatives other than grief.
6 sinz54 // May 28, 2009 at 6:35 am
InTheMiddle12: We have a perfect handle on why Obama picked Sotomayor. And this column, alleging a vast plot to “really” pick Sunstein, is nonsense.
Obama picked Sotomayor as a blatant political payoff to the Hispanic community. He’s defying the GOP to go after her,so he can paint the GOP as “racist” and “anti-Hispanic.” What’s so hard to figure out about that?
But what I say is that Sotomayor’s ethnicity won’t matter that much to the Hispanic community. Minorities are usually indifferent to the politicians that pick one of their own as a token. They’re proud of the *token*, but not proud of the politician who picked her.
If the GOP doesn’t change its position on immigration, they will win no Hispanic votes even if all of them enthusiastically backed Sotomayor. What the Hispanics see in the GOP is an anti-immigrant party, and that’s what is killing the GOP with the Hispanic community.
So I say: Let’s go for it! If we can define Sotomayor as a anti-white, anti-male radical feminist Leftist right out of La Raza, we can also define Obama’s vision of North America for having picked her–and take him down a few pegs.
7 Bulldoglover100 // May 28, 2009 at 7:20 am
Thank you for a thoughtful post that allows the thought process to actually work in a manner that does not insult the reader.
Your right on the money and as one site I read today stated, Obama is at it again. He sets the GOP up and then waits while we shoot ourselves in the foot frothing at the mouth and making accusations that reflect back on us….while the real issues are over looked for the quick sound bite.
I’ve seen the enemy and it is ourself.
8 Bulldoglover100 // May 28, 2009 at 7:26 am
Sinz54…..You are always amusing.
But let’s deal with some facts even if they deal a hard blow to your reality.
28% of the voters in the 2012 election will be hispanic.
The GOP cannot win a National election without them. No one can.
Your straw horse of running them off to “take Obama down a few pegs” won’t work if it costs us that 28% in 2012.
Your small tent theory is just full of idiocy though I have no doubt it makes you feel better personally to give in to a desire to rant about things you cannot control. Problem is it hurts our party.
I’m also betting that God loves the hispanic people as much as he loves you or I so I stop short of being a racist in my moderate position………
9 sinz54 // May 28, 2009 at 7:32 am
Bulldoglover100: I still believe in equal treatment under the law. Not preferential treatment for minorities.
10 ottovbvs // May 28, 2009 at 7:32 am
sinz54
wrote 50 minutes ago
“So I say: Let’s go for it! If we can define Sotomayor as a anti-white, anti-male radical feminist Leftist right out of La Raza, we can also define Obama’s vision of North America for having picked her–and take him down a few pegs.”
Why is is just a pay off to the hispanic vote….why isn’t it a payoff to the woman’s vote….she wears a skirt after all……Yep you go for it Sinz…..a real food fight to destroy a woman and an hispanic nominee……make it absolutely clear that the GOP is the party of disadvantaged white males who are becoming an oppressed minority ……of course you’re assisting the process of keeping the GOP a minority party for generations….that’ll take that Obama guy down a few pegs.
11 ottovbvs // May 28, 2009 at 7:35 am
Bulldoglover100
wrote 7 minutes agoSinz54…..You are always amusing.
…..I often wonder what he does for a living.
12 sinz54 // May 28, 2009 at 7:40 am
ottovbvs: We don’t have the votes to stop Sotomayor, you and I both know that.
And after she gets onto the Court, the public will forget about her. Did Hispanics resent the Dems over Estrada? No.
If the GOP doesn’t change its position on immigration, it can forget about the Hispanic vote forever. Immigration, NOT the Sotomayor nomination, is where the real battle for the Hispanic vote is.
13 // May 28, 2009 at 11:48 am
Sinz: I think you’re right about the lack of political benefit in nominating a minority. I think you’re right about the political benefit to Dems from this nomination will come when the GOP goes off the deep end in opposing her. And, I think you’re right about the political benefit of immigration reform. But, you seem to have drawn the wrong conclusions from all of this.
Because the modern GOP has yet to rid itself of that small, but vocal and undisciplined racist fringe, all discussions on policy get tainted. GOPers who oppose immigration reform or Sotomayor on perfectly legitimate grounds will have their arguments tainted by the racist fringe who oppose these things for the wrong reasons.
You can’t argue that Sotomayor is a racist (despite the fact that her comments are consistent w/ Alito’s, as I pointed out to you elsewhere on NM) and expect to be viewed as racially sensitive when discussing other race-related issues like immigration.
14 // May 28, 2009 at 11:52 am
Sinz said: “Let’s go for it! If we can define Sotomayor as a anti-white, anti-male radical feminist Leftist right out of La Raza, we can also define Obama’s vision of North America for having picked her–and take him down a few pegs.”
But Sinz also said: “The philosophy of the nominee can be quite different from the philosophy of the nominator.”
Not much credibility there.
15 WINDe // May 28, 2009 at 12:10 pm
Re: sinz54
No one party is going to get a clean “win” on the immigration issue, to be rewarded with a unified Hispanic voter base. It’s just an undesireable issue from a policy making standpoint; pursued to a reasonable, moderate end, it’s still messy as heck. I wouldn’t want it if I could take it.
I think Frum’s assessment of the Obama political savvy is close enough to accurate. It’s a “win” in the Hispanic vote column no matter the outcome of the nomination. And if Obama does pursue the Hispanic vote in his immigration policy, the Sotomayor nomination will support his position among Hispanic voters.
To assert that this is a null issue and the public will forget it smacks of foreseen loss.
16 InTheMiddle12 // May 28, 2009 at 7:26 pm
sinz: The GOP California immigration disaster has rippled across the country and the GOP, thank you Lou Dobbs, insistence on scapegoating people trying to connect to the American dream will be remembered for many generations.
Not unlike the black population’s loyalty to the Dems, the Dems have locked up the Hispanic vote. And they did it by seeing them as people and potential Americans, like past immigrant groups.
The GOP has chosen to see them as a threat, thank you Congressman Trancero (sp) and the GOP 2008 primary.
So the Judge Sotomayor issue is a very small chip in a much larger dynamic but a critical one. Yes, she will likely be confirmed and if that comes to pass, forever in American history it will be the Democrats gaining the credit, in a country that will be majority minority population more than likely in our life times.
Si se puede!
17 sinz54 // May 30, 2009 at 10:01 am
Spartacus: I don’t think the *national GOP* should “go off the deep end” in opposing Sotomayor.
But I do think that the Sotomayor hearings are a place for Republicans to stand up for the principle of individual rights as OPPOSED to identity politics and group rights.
Obama picked Sotomayor for a couple of reasons, one of which is that she’s Hispanic, and he hopes to a) appeal to the Hispanic vote and b) lure the anti-immigrant right-wing crowd into making fools of themselves–again.
There’s a simple way to counter this.
The Republican senators quizzing Sotomayor should stick to the issue of identity politics: Given a court case involving an Italian-American white male vs. a Hispanic female, do the scales of justice get weighted toward the Hispanic female? Is Lady Justice blind, or “empathetic” with one eye slightly open towards the disadvantaged?
Senate Republicans should NOT get their hands dirty circulating the LaRaza and “illegal alien” and similar stuff about Sotomayor. Leave that to right-wing talk radio and the right-wing blogosphere to put that stuff out–don’t worry, they will. Fox News will, of course, pick up on that stuff and spread it–so we *responsible* conservatives can keep our distance from it.
“Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy — and unequivocally for the principle of blind justice. “
— Charles Krauthammer
18 greg_barton // May 30, 2009 at 2:09 pm
The coolest thing is that most republicans will not listen to this extremely insightful analysis.
19 // May 30, 2009 at 11:38 pm
Sinz: Conservatives are the only ones that are practicing “identity politics.”
You claim that Obama picked her b/c of her race. That’s a completely unfounded and rather silly allegation b/c it ignores her qualifications, which clearly surpass those of Alito and many others presently on the bench.
By your reasoning any minority – no matter how qualified – would have been picked b/c of his/her race. This, of course, implies that only white males are qualified based on merit.
If I’m incorrect about this, please tell me what racial minority he could have picked in order to avoid the allegation that he’s playing identity politics? What would that minority candidate’s resume have to look like in order for his/her nomination to be viewed as based on merit?
20 // May 31, 2009 at 12:08 am
Sinz: You may find the first link informative, and you may find the second one making my earlier point in a more articulate way.
http://www.scotusblog.com/wp/judge-sotomayor-and-race-results-from-the-full-data-set/
http://www.juliansanchez.com/2009/05/29/a-sotomayor-core-dump/
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