Obama thinks big.
To borrow from Stephen Skowrownek, a professor of political science, President Obama seems to understand himself as a reconstructive president – a once in a generation politician who succeeds the weak inheritor (President Bush) of an existing and fragmenting political order (Reagan’s) and constructs a new majority that will transform America’s political commitments.
This is why, during the Democratic primaries, Obama compared himself to Reagan, rather than to Bill Clinton, a man with much smaller aspirations.
This is why, in a 2001 radio interview, he spoke favorably of “redistributive change” and a constitutionalism that was not so tethered to a concept of “negative rights.”
And this is why he has now doubled down and nominated Sonia Sotomayor, rather than folding and walking away from his previously articulated empathy standard.
The Reagan legacy, culminating in the confirmation of Chief Justice Roberts and Justice Alito, was an argument for judicial modesty in the face of our Constitution’s democratic foundations. As a Senator, Obama flatly rejected that understanding of a depoliticized judiciary arguing that “truly difficult” cases require a judge to resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
Like his reconstructive predecessors – Jefferson, Jackson, Lincoln, FDR, and Reagan – Obama seems ready to promote his own revolutionary understanding of our constitutional inheritance, one that in his view will promote a richer democratic community. The Sotomayor nomination is in pursuit of this goal. The question for Republicans is how they will confront Sotomayor in a manner consistent with both her and their constitutional responsibilities.
Sotomayor will no doubt resort to the “Ginsburg Rule” of “no hints, no forecasts, no previews,” a rule embraced by conservatives.
Any time spent by Republicans attempting to mine answers from Sotomayor on her respect, or lack thereof, for certain precedents will be time wasted. Similarly, any discussion of current events, particularly any protracted discussion of gay rights, will likely redound to Obama’s benefit.
Senate Republicans will be tempted to challenge Sotomayor’s commitment to privacy and liberty – the most pliable features of a living Constitution. They shouldn’t. She will give the same answer that Chief Justice Roberts and Justice Alito gave – ‘the Constitution does protect these constitutional values, but as a lawyer and judge I am not at liberty to provide any greater detail on the precise application of those constitutional commitments.’
However, Judge Sotomayor’s judicial methodology should be fair game.
Senator Schumer was right. It is appropriate to question a nominee for the Supreme Court about her ideology – not her views on particular issues, but certainly her understanding of the role unelected judges should play in driving social change in a democracy. Republicans can certainly ask Sotomayor what methods she would use in discerning the existence of constitutional developments.
Would the practices of other nations have any bearing on her understanding of America’s constitutional rights? If so, would she make any distinction between the expansion of rights through the democratic process and the expansion of rights through national courts, the European parliament, or the United Nations, all of which are of more questionable democratic legitimacy?
In the close cases that the President spoke of when elaborating his empathy standard, how would Sotomayor determine when standards of decency or conceptions of constitutional liberty had evolved enough to justify striking down state law or abandoning precedent? Is it possible for the people, through their democratically elected representatives, to halt or reverse constitutional developments previously identified by the Court? In a dynamic political environment, how would she compare the actions of state courts and legislatures, popular referenda and amendments, and the United States Congress when discerning the existence of constitutional developments?
How precisely would Sotomayor determine whether the actions of a state legislature, or of the people through popular referenda, are plainly irrational and motivated by an unconstitutional animus toward a disfavored group? What level of democratic advocacy by a religious institution is necessary to demonstrate such an animus?
Could a judge properly rule a popularly enacted amendment to the United States Constitution unconstitutional?
These methodological questions are fair game, and there is no justification for Sotomayor to refuse to answer them.
It is likely that President Obama seeks to fundamentally alter the constitutionalism advanced by his predecessor Ronald Reagan. He rejects artificial limits on the sweep of the Constitution’s normative commitments, and he sees the judiciary as a partner in his efforts to favor the poor and other disadvantaged groups in law.
Prior to her nomination, President Obama spoke with Judge Sotomayor for an hour about judicial philosophy. It is likely that they are of one mind on this subject. And it is wholly appropriate for Senate Republicans to determine whether Judge Sotomayor has any real methods that she would employ when determining the existence of constitutional developments. Otherwise, Obama’s promotion of constitutional change and a reactivized judiciary is just madness.
13 responses so far
1 SFTor // May 27, 2009 at 12:14 pm
Under the Bush Administration we got John Roberts and Sam Alito. Sotomayor seems like a fine addition to the group.
As to Obama’s assertions that his pick should have some understanding of what’s really going on with ordinary people, I can’t see that as negative. Overly theoretical approaches to arranging the social order (see Marxism) do not work so well.
2 LeeHotchkiss // May 27, 2009 at 1:33 pm
The problem with this argument is that it was an interesting argument to make 30 years ago. One could have imagined theoretical justices that would have made such arguments interesting.
However the Rehnquist and Roberts courts have if any thing have been more activist than the Warren court and certainly more activist than any court in between.
The reality the past two courts have come up with law almost completely out of thin air while being very clear about their bias. Where, for instance did the Court come up with its limits on punitive damages. Why does the constitution not prevent life imprisonment for a shoplifter who has two felony convictions but does protect the stock holders of a corporation from a total loss when their companies fraudulently misrepresent a defective product that results in thousands of deaths.
One could argue that such limits make good economic policy but you can’t argue that they follow naturally from the constitution, legislation or case law.
Similarly Bush v Gore makes Roe vs Wade look like strict constructionalism.
Alito in allowing much broader use “accidentally” tainted evidence was lyrical in the interest of justice regarding the one defendant, while totally ignoring faith in the justice system that can be lost when the courts are prevented from stopping systematic evidence manipulation because it is argued accidental.
The acquittal of O J Simpson didn’t come from nowhere. It came from a community that has lost faith in the judicial system. Alito can see the rapist who might get way because accidental evidence tainting, but he blind to the rapist who could get away because people just don’t trust the police anymore.
When judges such as Alito and Scalia trumpet their biases from the bench it almost impossible to make a bias argument against liberal candidate.
A bias for the government and corporations is just as much as bias against one.
The foreign law example helps highlight the proper role of judges. Conservatives make the false argument that most law is made by legislatures guided by the constitution. The vast majority of law is private law made in contracts between parties. Except for criminal law, judges spend very little time dealing with legislation. The vast majority of cases and appeals deal with the vast majority of situations where the black letter law is entirely silent, or not disputed by either party. Judges most often look not to legislation or the Constitution but to case law and standard business practices. In vast majority of cases judges attempt to maintain the rules of the game all ready commonly followed in the industry where the case arises.
This is where international law comes into play. It is persuasive not because it the law of another court or legislature, but because international corporations who are the parties to the dispute are probably already following these rules.
There is almost no chance the Supreme court would make a major change in criminal law or civil rights based on international law. Justices mention material as wide ranging as song lyrics and quotes from Yoda, but they have repeatedly reinforced America’s right engage in practices considered Unconscionable by the vast majority of other countries.
3 balconesfault // May 27, 2009 at 3:07 pm
For those who are appalled by Sotomayor’s “empathy” stance … from Alito’s confirmation:
“Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.”
“But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’ “
“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”
4 ottovbvs // May 27, 2009 at 3:55 pm
Go ahead make Obama’s day. There is now circulating on the internet a quote from GHWB where he lauds Clarence Thomas’s “empathy.” So what’s empathy for Clarence can be empathy for Sonia. And as if Justice Scalia’s personal opinions have nothing to do with the legal positions he takes. If you believe that I have a bridge in Brooklyn to sell you. The point being this is a totally counterproductive effort. She’s going to get confirmed, she’s completely qualified, broadly liberal but completely mainstream, and has an incredible resume. Go ahead make Obama’s day.
5 sinz54 // May 27, 2009 at 4:05 pm
ottovbvs: You can tell Obama that we’re happy to take him on–anywhere.
Courtesy of the Wall Street Journal, here are some questions worth asking of Sotomayor in the hearings:
1. When a law that is constitutional requires a result you don’t like, what do you do? In other words, which matters most, fealty to the law–or the result?
2. Do you believe that interpretations of the Constitution should evolve to keep up with the times? If so, how would you decide when the Constitution needs updating?
3. Chief Justice John Roberts has said that he believes judges should act like umpires–calling the plays, not making them. How would you respond to him?
http://online.wsj.com/article/SB124338359957256605.html
6 krove // May 27, 2009 at 6:58 pm
I think Sotomayor can handle being dragged through the mud without getting so much as a droplet on herself.
On the other hand, I would like to see any of her critics last one day in the housing projects of the Bronx.
7 krove // May 27, 2009 at 7:03 pm
Here you go some red meat to fight over.
Today, Judge Sotomayors culinary tastes range from tuna fish and cottage cheese for lunch with clerks in her chambers, to her standard order at the Blue Ribbon Bakery: smoked sturgeon on toast, with Dijon mustard, onions and capers. She works out three times a week, putting in three miles on the treadmill in the courts gym. Divorced and with no children, she enjoys the ballet and theater and lives in a condominium in Greenwich Village both a subway ride and a world away from the housing projects where she grew up.
Go with the Dijon mustard attack. It worked so well on Obama didn’t it.
Go to it.
8 krove // May 27, 2009 at 7:07 pm
This is where I usually attempt to say something clever, but I really dont know what to say. I dont understand the law or legal reasoning well enough to have a truly informed opinion about Sonia Sotomayor, and since so much of what they do at her level deals with technicalities and case law I just am not equipped to fully understand, I can really only base my judgments on her achievements as a person. What I see is someone who was the top student pretty much everywhere she went, and who then went on and served for years as a judge, racking up years of service and accomplishment. Shes done much more with her life than I probably ever will, and with a much harder path to success than I had. To then listen that she is somehow stupid or was just given what she earned because of her skin color just doesnt make any damned sense to me at all. A couple years ago I looked at Sam Alito and John Roberts and saw the same thing- really bright people who had accomplished a lot, worked hard, and made something exceptional of themselves.
Maybe that is what is the basis of so many of the attacks the past 36 hours. She is better than Mike Huckabee, and she had the audacity to do it while having a vagina and an exotic last name.
HT BJ
9 SFTor // May 27, 2009 at 8:33 pm
I find it interesting that the Huffington Post is featuring an article where abortion proponents aren’t too sure about Sotomayor’s views on abortion.
Could it be that both are getting a little bit here?
10 sinz54 // May 28, 2009 at 6:40 am
krove sez: “On the other hand, I would like to see any of her critics last one day in the housing projects of the Bronx. “
I *lived* there. I was born there. I grew up there.
Surprise!
The difference is, what I saw there made me a CONSERVATIVE. I saw how liberals like you turned the Bronx into a crime-ridden, graffiti-ridden, drug-ridden, arson-ridden pesthole.
11 sinz54 // May 28, 2009 at 7:34 am
krove: My family was poor–probably not much wealthier than Sotomayor’s family. (We lived at the Ralph Kramden level of wealth and income.)
The reason I reached a different conclusion than Sotomayor, was that I and my family are white. Hence we could never buy into the racialist ideas of affirmative action and reparations, which have tipped so many minorities toward the Dems.
12 // May 28, 2009 at 11:33 am
Sinz: Your view of why minorities favor Dems seems to based on a very select piece of history. Minorities don’t favor Dems b/c of affirmative action. Minorities favor Dems b/c of the racial hostility, or at best, indifference to racial discrimination that is too often present among conservatives and the GOP.
Affirmative action was an attempt to reverse the effects of this country’s long history of racial discrimination. It may not have been a perfect remedy, but conservatives and the GOP seem to think that the imperfection of the remedy means that the underlying problem never existed.
13 sinz54 // May 28, 2009 at 5:57 pm
Spartacus: That hardly tells the whole story. FDR was able to put together a Dem Party coalition that consisted of Northern blacks and Southern white segregationists. (All the famous white segregationists, Lester Maddox, George Wallace, Bull Connor, Robert Byrd, etc. were Democrats.) Only in the Deep South did blacks vote Republican.
Why wouldn’t blacks mind being in the same Dem Party coalition with white segregationists? Because of *economics*. FDR promised handouts to the blacks, and to the white poor, and they all responded with their votes.
The Republican Party, being a mostly capitalist party, can’t outbid the Dem Party when it comes to handouts. And because the free market gives you the right to decide what you want to do with your money. If you don’t want to help blacks with it, then so be it. But that effectively closed the door on blacks, since they had no internal sources of education and training to draw on, as the Jews had done.
You must log in to post a comment.