More on Sotomayor

She's hardly a die-hard fan of the little guy.

In the linked Slate article by Emily Bazelon, Bazelon lays out how Sotomayor can be very convincing; in the cited case, she convinced a conservative and liberal judge, both of who started out opposed to her view, to switch sides and sign on to her decision in a case where "empathy" would lead you to believe one might side for the trucker in this case over the off-duty cop:

But what's striking, of course, is that she persuaded them to undo a verdict in a case that a jury saw as rife with police abuse of power. "You read this unanimous opinion, and it would seem to be the Republican judge who is driving this decision that she just signed on to. When in fact it was exactly the opposite," one observer said.

The other two judges had decided to rule to uphold a jury verdict and a $600,000 award for damages for a trucker who, whatever the merits of his suit (he was found not guilty of assault against the officer, who he got into an altercation with over a payphone, back in the 90s, where trucker Jocks claimed he explained he had an emergency with his truck broken down further up the highway and the cop refused to reliquish the payphone; fight ensues; the cop claims Jocks made no mention of an emergency and started a fight for the phone) seems to have been quite thoroughly punished for a crime it was ultimately determined he didn't commit:

fter his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.

Frayster Joe_JP observes that this actually fits in with what we know of Obama, like his upholding of some Bush era atrocities:

Given the mixed feelings some have with recent actions by President Obama (e.g., preventive detention), this should not surprise. In fact, though he was specifically talking about his views on a "living Constitution," Obama in Audacity of Hope suggested his model is Justice Breyer. Someone Rachel Maddow recently suggested was more centrist than liberal (and at times tecnocrat), and various of his opinions can be used to back that up. But, the game has to be played, so she is tarred by the likely subjects when they should be quite happy she was chosen.

Dionne appears to have it quite right. And the last thing we need on the court in this J's opinion is another "law-and-order" type, inclined to "[use her] formidable skills on behalf of the strong in opposition to the weak". Where did you hear those words before? They were Obama's objection to the nomination of Supreme Court Chief Justice John Roberts. Although O may have been talking about minorities and plaintiffs in cases against large commercial interests, it's worth remembering that the police very much are often the ones who are the strong (such as in the trucker case where, when the off-duty cop had enough, he pulled his gun and put it to Jocks' head), and Sotomayor appeared to have used her formidable skills on his behalf.

Dionne: "And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left."

Rebuffs for conservative attacks on Sotomayor: Liberal Talking Points for the day

If you're so inclined as to come to the defense of the "most conservative Supreme Court pick Obama could have made", HuffPo blogger-reporter Jason Linkins reviews how (arch-conservative) Supreme Court Justice Antonin Scalia has argued that "courts make law" (as conservatives are accusing Sotomayor of saying as a reference to "activist judging") and empathy and the racial background/history/experiences of a candidate were brought to bear in the nominations of Alito and Clarence Thomas:

This all comes courtesy of HuffPost reader Doug Schafer, who is of the opinion that journalists ought to avail themselves of this citation from Scalia whenever the "judges don't make law" canard arises. I agree!

Additionally, Sotomayor's critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process. Who does she think she is? Well, as it turns out, she probably thinks she's being very similar to Justice Sam Alito:

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ... And that's why I went into that in my opening statement. 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. [...]

And that goes down the line. 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.

[WATCH.]

And, in a related way, the criticism over "empathy" fits the same "this-was-once-deemed-okay" mold. My experience teaches me that only robots lack empathy, and that most people value it. Yet, ever since President Barack Obama cited it as a focus of his, in his search for a replacement for Justice David Souter, the whole notion of "empathy" has been treated as an alien thing that threatens the sanctity of court decisions.

That's weird! In July of 1991, "empathy" was one of the major selling points presented at the nomination of Justice Clarence Thomas...

And speaking of Supreme Court Joke Justice Joke Clarence Thomas, HuffPo's Trey Ellis writes:

When a middling black student from Holy Cross goes on to Yale Law School, graduates in the middle of his class and is rated by the American Bar Association between "qualified" and "not qualified," the right festoons him with laurels. Clarence Thomas, you see, reaffirmed the comforting notions many in the right have about the supremacy of white maleness. George the First nominated him clearly because any black jurist would do and there he stands today, a reassuring beacon of black inferiority.

(I'm not saying that the first George Bush wouldn't have picked a more qualified black arch conservative if there had been one laying around. In matters of race the first George Bush wasn't such a bad egg.)

Nevertheless, for the far right his nomination was a wet dream and the humiliating effect on competent black folks is the same.

Sotomayor's been dealing with this crap for years. The LA Times reports today that in law school she sued a white-shoe Washington law firm for the exact same kind of white-male- supremacist attitudes the right is regurgitating her way right now...

I've said it before and I'll say it again: Hypocrisy's ok when I do it.

Circling the Center: Recommended readings

I hope to get to more commentary on yesterday's post at some point, but for the time being, the Continuum's recommended reading for today consists of two articles by the WaPo's E. J. Dionne, Jr:

Obama's Center-Left two-step

Obama's Anti-Roberts

In the first, Dionne (I keep wanting to add "Warwick") analyzes Obama's governing style, and finds it to (thus far) be an updating of Bill Clinton's triangulation (though I think Dionne implies, but does not say, that Obama's strategic compromises more authentically represent his political philosophy compared to what was widely seen as Clinton's more calculating political, well, triangulation). Obama is trying to tack to the Left, in Dionne's estimation, but only just:

He is out to build a new and enduring political establishment, located slightly to the left of center but including everyone except the far right.

The problem Dionne finds with this is that the ObamAdministration is trying to do this in part through only slightly sub rosa message control, pitching different messages to different audiences, but in a sort of blatant way that I think took Dionne slightly aback:

Last Thursday afternoon, for example, the White House invited in journalists, mostly opinion writers, to sell them on the substance of the president's big speech on Guantanamo and the treatment of detainees.

Unbeknown to the writers until afterward, they had been divided into two groups, one more centrist with a sprinkling of moderate conservatives, the other more liberal. (I was in the liberal group.) The president made an unscheduled appearance at each briefing. As is his way, he charmed both groups.

The idea, as far as I can determine, was to sell the liberal group on those aspects of Obama's plan that are a break from George W. Bush's policies, and to sell the centrist group on the toughness of the president's approach and the fact that it squares with Bush's more moderate moves later in his second term[...]

[...] The disturbing aspect of Obama's effort to create his new political alignment is that building it requires him to send rather different messages to its component parts. Playing to several audiences at once can lead to awkward moments.

Besides to playing to different audiences leading to potential awkwardness, there's the possibility of trying to please everyone and instead pleasing no one (apparently not yet the issue, at least in the meetings Dionne discusses), as well as the vague dishonesty of it. My concern, at the least, is that Obama isn't and never has been particularly left-liberal. He really has kept much more of the Bush Admin era extra-legal Constitution-busting executive apparatus than I'd like (or, you know, would argue is right, just, constitutional, or in keeping with his promises). In short, I'm afraid not just of his pitching his message to different audiences, but in his triangulating to towards the Right of not just where his critics claim he is (Far Left), from where he's perceived to be (Leftist Wing), but from where he actually is (Center Left); when you start your position in the middle, your only direction to compromise to farther towards the right (since the liberal-left can be taken for granted, usually).

Anyway.

Dionne (not Warwick)'s other article talks about how Supreme Court nominee Sonia Sotomayor is the most conservative choice Obama could have made, pointing out that conservatives should be pleased instead of fighting, and liberals should be vigilant, and while they (we) shouldn't oppose her nomination, nor should we be glad for it:

News accounts from the 1990s consistently described her as a "centrist" in her politics. Her lead sponsor when she was first named as a judge, the late Sen. Daniel Patrick Moynihan, was hardly a conventional liberal. Obama may have found himself an empathetic judge, but she practices her empathy from the middle of the road.

A careful analysis of her record by Business Week, for example, concluded that she is a "moderate on business issues" and would fit the court's current alignment on such questions.

She also upheld a ban on federal funds going to family planning groups that provided abortions overseas. Sotomayor wrote that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

Dan Gilgoff, on his excellent "God and Country" blog, points out that Sotomayor also ruled in favor of a group of Connecticut antiabortion protesters who asserted that police "used excessive force against them at a demonstration." He concludes that her "thin record on abortion is most likely a relief" to pro-life groups. In picking her, Obama sent another signal that he is serious about seeking common ground on abortion.

On how we should see this nomination, he continues

Liberals should not take the bait of the right-wingers by allowing the debate over Sotomayor to be premised on the idea that she is a bold ideological choice. She's not. But if conservatives succeed in painting this moderate as a radical, they will skew future arguments over the court. In fact, liberals should press Sotomayor on her more conservative decisions on business issues, an area in which the current court already tilts too far right.

Go read the whole thing.

*EXTRA SPECIAL BONUS EXCELLENT DIONNE WARWICK QUOTE ON EMPATHY:

Conservatives -- particularly those who run direct-mail outfits and want a big court fight -- would love the decision over Sotomayor to hang on Obama's call for judges who show "empathy." They would cast her as a dangerous activist willing to bend the law to produce the results she wants.

They want to turn Obama's argument on its head and claim that Sotomayor would show bias in favor of those who share her background -- and never mind that they dismiss such assertions when they are raised with respect to white, conservative, male nominees.

(emphasis added)
Three words for that observation: AMEN and DAMN STRAIGHT.