Saturday, August 8, 2009

The Law Turned Upside Down

Barack Obama has succeeded in getting his very first Supreme Court nominee confirmed. The democratic process has worked once again, but that doesn't mean it worked well. The first proud advocate of special racial, ethnic and gender preferences will now sit on the highest court in the land. The world won't end, and the Constitution won't disappear, but another landmark of judicial appointments has been set.

By a vote of 68 to 31, Sonia Sotomayor was confirmed to replace Associate Justice David Souter, who retired at the end of the term in July. The "liberal-conservative" balance on the court will not change in any appreciable way. However, another slice has been taken out of the national motto E Pluribus Unum (out of many, one). If I knew how to phrase it in Latin, I would say the new motto is "one group against many groups." Sotomayor is not the first woman on the court. But she is the first Hispanic, which also makes her the first female Hispanic on the court. The Obama administration is absolutely obsessed with "firsts."

Many of us who fought the civil rights battles of the 60s were pleased that a black man could finally be elected President. And we are pleased that an Hispanic will finally sit on the high bench. It does not follow that all of us are thrilled speechless by this black President, or this Hispanic Justice. When the results of the Presidential election were pretty much final, wild demonstrations (some would call them low-level riots) broke out in most of our major cities. The common shout was "we won." Normally that "we" would mean "we Democrats," or "we Republicans," or even "we Americans." But the tone was clear. A large portion of the crowds carrying on in the streets were not old enough to vote, and most weren't even registered. It was abundantly clear who "we" was. Yet even some racial pride in the moment is not necessarily a bad thing, so long as it isn't the only thing.

The Supreme Court is not nearly as exciting a post as the Presidency, but it can have much longer-term effects since Presidents are transitory and Supreme Court Justices are for life. So the celebrations were not nearly as tumultuous as those following the Obama election. More importantly, the celebrations of Hispanics has no particularly ominous meaning. Why shouldn't they be happy? Most Hispanics (like most other Americans) really have very little understanding of the law, the Constitution, and how a Supreme Court decision is reached and implemented. They simply know it's an important post, and for the first time an Hispanic has joined the Brethren. Celebration seems perfectly appropriate.

The shame is in the way the press, the Democrats and the TV talking heads have handled the matter. Never mind her atrocious misstatements of the law, reversals in major constitutional cases, and clearly-stated intention to violate her judicial oath of absolute neutrality. The drumbeat remains the same. The Los Angeles Times reports that Sotomayor "completed an unlikely and historic journey." True enough. Candidates who express strong intentions to ignore their judicial oath generally don't get past first base.

AP mixes history and "firsts" into one gushing statement: "This was a history-making Senate vote in which the nation's first black President praised the Senate vote as breaking another barrier and moving us yet another step closer to a more perfect union." How preferring certain racial, ethnic and gender groups over others leads to a more perfect union remains a mystery. The Hispanic barrier could have been broken during the Bush administration, but Democrats don't like Hispanics of a conservative bent. And since Sotomayor follows in the footsteps of Sandra Day O'Connor and Ruth Bader Ginsburg, there's no first there either. So it really comes down to the Republicans allowing this alleged barrier to fall for the first time. But it was a barrier that seemed only to affect Hispanics who don't like judicial activism.

ABC World News was even more effusive. "There was joy and pride, as Hispanics across the country and the President celebrated an historic first." First, first, first. The "first" I'm waiting for is the first Obama nominee who has read the Constitution, the judicial oath, and hasn't made multiple public speeches denigrating both. USA Today writes a paean of praise that makes Lincoln look like he was born in a Boston mansion: "Sonia Sotomayor grew up speaking Spanish in a public housing project, and is now headed for a seat on the Supreme Court after an overwhelming Senate vote Thursday to make her the first Hispanic member of the court (emphasis added.)" It would have been a little surprising if the first Hispanic member of the Court had grown up speaking lesser Urdu, now wouldn't it?

So let's take a quick look at that "overwhelming" vote. Every Democrat and Independent, plus nine apparently confused Republicans, voted in favor of confirmation. But there's a little sidenote here. It is important to remember that Republicans have always abided by the simple rule that they vote for the nominee so long as the nominee has nothing in his or her record which indicates that former acts, words or track record indicate a disregard for the Constitution or the judicial oath of neutrality. Democrats have not returned that courtesy since the Bork assassination. Sotomayor doesn't even fit that rule of thumb which served the nation so well for so many years. Nine Republicans are still wallowing in the dreamworld of bipartisanship, fair play, and sound reasoning, so they voted to "allow the President his choice for the Court."

The nine cretins had spent considerable time at the hearings eliciting answers that confirmed Sotomayor's skewed judicial philosophy. This wasn't about playing by the rules, it was about glad-handing their Democrat friends. They should be completely ashamed of themselves. And I certainly hope their constituents back home have taken notice of the sell-outs. Once having established that Sotomayor believes in racial, ethnic and gender preferences, it became their duty to vote against her. Arguing over judicial philosophy such as judicial activism or the "living Constitution" and getting the answer you don't like is a difference in political philosophy which should not be taken into account in confirming a judicial appointee. But a nominee who has clearly espoused a strong desire to ignore the judicial neutrality oath deserves a "no" vote, regardless of the philosophy of the Senator voting. These nine weak-sister Republicans failed in their duty.

This was not the appropriate battle for the Republicans to "go nuclear." But having gotten answers that by all ethical standards are anathema to students of the Constitution, the Republicans should have been unanimous in their opposition. It wouldn't have been enough to stop the confirmation, but it would have been a proper demonstration of will and honesty that the Democrats could take as a future warning.

The good news is that despite all the ballyhoo and celebration of the "overwhelming" victory, Republicans who don't care about their popularity with the Democrats have actually done something that got lost in the "first, first, first" parties. So here's the part the TV talking heads, The New York Times and PBS Radio aren't telling you. Even with severely reduced numbers in the Senate over the past two election cycles, Republicans mustered more votes against Sotomayor than against any Democratic nominee since the Senate rejected Grover Cleveland's nomination of Wheeler Peckham in 1894.

You like firsts? Well, this is the first overwhelming rejection of a Democratic Supreme Court nominee by Republican Senators in 115 years. The President may have to consider appointing a qualified nominee next time instead of going bonkers over another first (like the first two-headed Supreme Court nominee, or the first card-carrying member of the Communist Party).

For my column on the most recent Sotomayor reversal: Ricci v. New Haven

For Andrew Price's column on Lindsey Graham and the Weak-Willed Republicans: Lindsey Graham

13 comments:

Joel Farnham said...

I still am having trouble with the fact, in this day and age, we have a racist on the Supreme Court.

The Republicans who voted for her confirmation should be ashamed of themselves. The Democrats have never shown any principles I like, so I don't expect anything from the Dems. I'm talking about elected officials here.

LawHawkSF said...

Joel: What bothers me most is that the Republican members of the Judiciary Committee (Lindsey Graham chief among them) appeared to be doing their job. They questioned, they cross-examined, they produced evidence and they demanded straight answers. The answers they got were totally unsatisfactory, in some cases outright lies. They were able to make it clear that Sotomayor says one thing, but does another. And they established that she believes race, ethnicity and gender are valid elements of judicial determination, despite the judicial oath requiring exactly the opposite. Yet knowing all that, nine Republicans in the full Senate would rather play footsy with Obama than to do their sworn duty. All nine should be summarily drummed out of office at the very next electoral opportunity.

The Judicial oath says that the Justice will not be a respecter of persons, and will administer justice equally to the rich and the poor alike. Sotomayor has violated that oath, and will continue to do so on the high bench.

The Senatorial oath says that each Senator will "support and defend the Constitution against all enemies, foreign and domestic, and will bear true faith and allegiance to that same Constitution." Nine Republicans have violated their oath of office. So did the Democrats, but we expect it of them.

Tennessee Jed said...

Like commenting on a Tiger Woods golf shot, I will, somewhat monotonomously start with: nice article, Hawk.

One interesting thought responce your post elicited from me was this-- Democrats, particularly far left liberals, seem to reserve a special hatred for Republican or conservative minorities. The thought of a conservative black justice against affirmative action or a female as the first vice-president (with option to become president) who was not 'down' with abortion is an anathma to liberals. I think their feeling is that they alone are permitted to be the only champion of minorities. A conservative minority clearly does not play to that template narrative.

AndrewPrice said...

Lawhawk, Well put. As you know, I had problems even beyond the race issue with her belonging to a private group with a secret membership, i.e. secret society.

That violates the code of judicial ethics and should have disqualified her per se. And when she figured out that could be trouble, she resigned to make the whole thing go away. But the joke was on her becuase the Republicans never even mentioned it.

So much for protecting the integrity of the system.

Joel Farnham said...

LawHawk, I hear you. Is there something in the water around DC that changes people? Or is it natural that people who spend time near power change. Time and again, we have sent Reps,Senators and Presidents to Washington DC and they change.

LawHawkSF said...

Tennessee: The kinder expressions leftists have for black and minority conservatives include food references like "Oreo" (black on the outside, white on the inside), "coconut" (brown on the outside, white on the inside), and in San Francisco with its large Asian community the favorite is "banana" (yellow on the outside, white on the inside). In the case of blacks, if all else fails, there's "Uncle Tom." And when the liberals are really angry, it's
"race traitor."

Each race preference gives the minority community a false sense of heightened importance while denigrating everything that could truly bring the equality we all desire. White liberals are telling minorities that they're incapable of competing on a level playing field (racism). Black activists are telling minorities that they deserve the government largesse because of past discrimination by white oppressors (racism). And now they have an advocate (not a neutral judge) on the Supreme Court (racism). Race-hustling is a huge industry, and the left is not about to give up the money and the votes that come with promoting it.

LawHawkSF said...

Joel: There is too much power centralized in DC as a result of years of big government liberalism, and more recently big government conservatism (whatever that is). And we all know what the most famous quote about that is: "Power tends to corrupt, and absolute power corrupts absolutely." The Founders created a government that was specifically designed to avoid that kind of concentration of power. It has taken two centuries of erosion to reduce the concept of limited, diffuse government to a meaningless catchphrase. Until the Constitution is revived, and power that belongs in the hands of the people returned to state and local government, the disease of power will continue to infect everyone who is sent to DC to protect our liberties.

Andrew: You and I are not naive, but even veterans like us held out a glimmer of hope that the Republicans would maintain some integrity and vote against this ethical and professional disaster. The Republicans never fail to disappoint. I think the membership in a private secret society didn't bother any of them. They belong to one of the most insidious secret societies of all--The Loyal Fraternal Order of Political Incumbents.

StanH said...

Everyone in Washington is headed in the same direction – one a little faster than the other. There’s not a dimes worth of difference between the two parties, this needs to change. We as conservatives need to force the Republican party to tow the line or vote the Rino out. Comity is required in civil debate, subservience is not. The default position in Washington in any debate is on the liberal side. In confirmation of judges it started with Judge Bork an imminently qualified man who was destroyed by the Swimmer, Ted Kennedy and the phrase, “the Borking of a judge” hit the vernacular. Now our judges are being picked via identity politics, I give you Judge Sonia Sotomayor. We’ve got a lot of work to do. This by the way is another gift from the ‘60s in my opinion. It’s to bad you and Andrew were not the ones doing questioning of our latest Supreme Court Justice.

AndrewPrice said...

Lawhawk, I think you're right. I also think that many of them probably belong to similar groups and they don't want to make this into an issue because it could hit back at them.

LawHawkSF said...

StanH: I remember from my old experience that outside of DC, politics was kept pretty much out of the judicial process (that was 1981). Though my radical days were over, I remained a liberal Democrat. My appointment to the bench came from a Republican Presiding Judge, I was vetted by a Republican Attorney General, and interviewed by a judicial council heavily dominated by Republicans. I was the chairman of the Democratic Party in Eastern Ventura County, so my politics were well-known. The inquiry delved deeply into whether I knew the rules, whether I abided by the rules, whether I had ever violated my oath as an attorney, and were there any violations of the State Bar rules on my record. I answered the questions honestly and openly, and the record verified what I was saying. That was it. At that point I became one of two Democrats on the entire Ventura County bench. For my subsequent appointment to the Los Angeles County bench, those questions were perfunctory, and I was grilled on my judicial philosophy. One county line away, and the whole picture changed. Competence was no longer a serious issue, and it was replaced by an investigation into how I voted at election time. What disturbed them most was how a Democrat could get a clean bill of health from a Republican Attorney General. Nuts!

LawHawkSF said...

Andrew: How much do you want to bet that the Loyal Fraternal Order of Political Incumbents even has a secret handshake? I think I'll try something the next time I see Nancy Pelosi.

Mike Kriskey said...

You gotta think that an Asian will be next to be first. I just hope Lance Ito isn't available.

LawHawk, the secret handshake is a normal handshake, which conceals a folded up $100 bill.

LawHawkSF said...

MikeKriskey: San Fran Nan has the shakes down to a science. Everything moves except her face.

I was born in Chicago, and my parents taught me that secret Chicago handshake. It served me well when I stopped in Chicago on my youthful road trip to New York and got a traffic ticket. Best cops money can buy.

I spent interminable hours in the LA Downtown courts on criminal matters when Lance Ito was the Assistant District Attorney (his boss was the even dumber Gil Garcetti, who is now an adviser on bad TV lawyer shows). I don't think they'll appoint Ito. He's so slow-witted that they couldn't count on him to remember the party line. By the time he decided how to vote on a case, the court term would already be over, and we'd be getting a bunch of 4-4 decisions.

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