The Sotomayor nomination may be safe, but at what cost for future Supreme Court picks?

"There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves."

-- Jeffrey Toobin, in his July 20 New Yorker "Comment"

on the Senate Judiciary Committee hearings

by Ken

I imagine a lot of folks on our side of the war for the soul of the federal judiciary are breathing easier after the Republicans on the Senate Judiciary Committee seem to have blown their wad in the hearings on Judge Sonia Sotomayor's nomination to the Supreme Court. They were so lame, it was hard to tell whether they were just going through the motions or are just, well, that lame.

After watching "Little Jeff" Sessions at work, though, I have to say I'm inclined more to the they're-just-that-lame theory. I think the Senate Republicans thought they were upgrading their attack-dog profile by slotting Little Jeff into the SJC ranking minority member slot vacated by the hated turncoat Arlen Specter. I don't doubt that Little Jeff has all the viciousness and hatred and ignorance necessary for a high-profile demagogue; he just doesn't appear to have any communications skills, which are traditionally highly prized in demagoguery. He seems to have more the cunning of Wile E. Coyote, watching his latest scheme for Road Runner neutralization blow up in his face. (I still say the R's should have Henry Gibson playing Little Jeff.)

In the larger scheme, though, I'm still thinking about the SJC hearings in the context of the point I tried to make this morning: that all these battles the R's are losing don't necessarily mean they're losing the war, taking the long view.

Really and truly, in the absence of something really damning, what were the chances the nomination was going to be shot down? I suppose there was always the possibility of a filibuster, but were the R's really prepared to face the electorate after doing that to a Hispanic woman of such impeccable legal credentials? Oh, they had their mini-gotchas, the "making policy" remark," and the "wise Latina" one, and then the Ricci case. But even master obfuscators would have had a tough time cashing in those meager chips.

Still, it seems to me dangerous to underestimate the amount of damage the "Just Say No"-ers inflicted, to be applied to the next Supreme Court nomination, which is once again much likelier to be one of the remaining moderates rather than one of the neanderthals being replaced, meaning that on our side we're going to be fighting just to hold our ground..

Now I hope no one was surprised by my reference to "one of the remaining moderates." Surely there isn't anyone who thinks there are any actual liberals among what is casually referred to in the Infotainment News Media as the Court's "liberal bloc"? Like who? These are fine, honest folk, who performed heroic service during the Dark Ages of the Bush regime, but they're not liberals.

Is there any way we can ever repay our debt to Justice John Paul Stevens? Remember, he was within months of his 81st birthday when Chimpy the Prez took the oath of office, and any hope that he might merely have to survive another four years was dashed in the 2004 election. It's possible that the justice, apparently in good physical and mental health, would have chosen to remain on the Court anyway, but the fact is, he was pretty much deprived of the option of retirement.

(Ironically, the justice who probably helped install Chimpy as president precisely so she could retire, Sandra Day O'Connor, may have left with more regrets than she expected, as she watches the transformation wrought since her departure by the advent of the two new justices. Justice O'Connor was a bona fide conservative, but in case after case the XXXXXXs of the Roberts Court are going places she knows perfectly well they wouldn't, couldn't have gone with her still sitting.)

That said, it doesn't make Justice Stevens a "liberal." Justice William Brennan was a liberal. Justice Thurgood Marshall was a liberal. These folks, honorable justices all, are moderates.

And both the selection of Judge Sotomayor and the process by which she appears to be securing confirmation are stacking the deck even more against the appointment of a liberal judge to the Court at any time in the foreseeable future -- even if we had a president inclined to make such an appointment, which I'm sure not persuaded we do at the moment. I think "moderates" may be just fine for President Obama.

As a piece of political calculation, as I've already written, the Sotomayor selection was brilliant. It became apparent pretty quickly that it wasn' going to be necessary to read all of her huge number of judicial opinions to know that this was not a judge who had a secret "liberal streak" that had to be hidden. Now, Justice Sotomayor (to jump the gun a little) may yet surprise us; there's no such thing as dead certainty when it comes to Supreme Court justices, who -- once confirmed -- are about as beyond the reach of detractors as anybody in the workforce gets. But I think the R naysayers knew pretty quickly that they weren't dealing with a closet liberal. The judge's participation in the panel that ruled against firefighter Frank Ricci in the New Haven case may have been an undeserved gift for the R's, but surely none of them are so lame-brained as to believe they had found evidence of a disguise masking her "liberalism."

Does this mean that the next Court nominees will have to be as visibly moderate? Well, maybe even more so, since they aren't likely to have the secret weapons of Judge Sotomayor's gender and ethnicity.

And does this mean that those next nominees are going to have to maintain the fiction that the criterion for appeals-court judging is, plain and simple, applying the law?

Jeffrey Toobin expresses regret in his July 20 New Yorker "Comment" piece on last week's hearings:

In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.

For once that blowhard Sen. John Cornyn wasn't wrong when he said that Judge Sotomayor's answers explaining her judicial philosophy made her sound exactly like Chief Justice Roberts, who of course is even less a believer than Judge Sotomayor that the job consists of just-applying-the-law.

Oh, Toobin understands why nominees of all ideological persuasions have arrived at the practical wisdom that during the confirmation process you say nothing of substance, and especially nothing that can be used as ammunition against them. Nevertheless, he makes a great point: We have now more or less officially conceded that the subject of what judges actually do is too complicated to be discussed with, or even in front of, the American people.

And once again whole areas of public and legal policy have been declared off limits, not just as subjects of discussion, but perhaps also as areas of belief that can disqualify future Supreme Court (and lower federal court) nominees. There was, most notably, the grotesque spectacle of a vile toad like Little Jeff Sessions playing the race card, just the way Rush Limbaugh or Pat Buchanan would -- well, did. Toobin writes aptly:

There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves. (One of the more cringe-worthy moments of the hearing was Sessions’s expression of incredulity that Sotomayor might disagree with another judge on her court even though he was also Puerto Rican.)

To focus on just one point, in the extreme case -- by which I mean the ignorant and rawly hate-filled mouthing off we heard from Buchanan, most notably in the infamous interview with Rachel Maddow. Buchanan, as I've pointed out, has managed to turn the very idea of affirmative action into something shameful and unworthy. As I wrote, "In the lunar landscape that is Pat Buchanan's brain, 'affirmative action' is nothing more than a piece of the massive plot -- watch out, the plotters are everywhere! -- to cheat white males, the very people who made America what it is, out of their rightful share of the pie, which is all of it."

As a result, there's hardly any point documenting what I assume are typically Buchananite misrepresentations of Judge Sotomayor's own relationship to affirmative action. After all, confronted with the issue of her outstanding academic record at Princeton, poor Pat actually blithered on about everybody knowing about Ivy Leaguers all getting those high grades. At that point, I find it unfathomable that whoever at MSNBC is responsible for signing his paychecks, or a flunky thereof, didn't simply walk onto the set gun in hand and put the pile of puke out of his misery. As it is, as I say there's no point going back to the judge's testimony, because she would have had no reason to speak of affirmative action with any measure of hostility or derision.

People like Rush and Pat have done everything they could to load the term just that way in the American imagination -- hey, them my-norities is gittin' special vantages! But by being afraid to answer them, again on the assumption that the American people are too stupid to understand the real issues, we have more or less allowed them to define those issues. It is, I tell you, one creepy experience to see and hear Rush Limbaugh announce that of course Judge Sotomayor is a racist. Your impulse is to say, "And you would know, huh, Rush?" But of course he wouldn't, or at least he wouldn't say, not publicly. When he's among his own kind, he can brag about his racism, but of course it isn't real racism that Judge Sotomayor was being accused of.

I was feeling pretty glum about this state of affairs when a colleague who has actual experience with affirmative action, and by experience I mean 25 years litigating affirmative-action cases, offered the first sense I've heard in, well, a while, on the subject.

I was going to cherry-pick a few paragraphs, but in the end I think I'm going to quote the whole piece, which isn't that long, with just a bit of highlighting of points so basic that we need to find a way to make them part of the national understanding.

Pat Buchanan Continues His Racist Attacks on Sotomayor

By Guy T. Saperstein, AlterNet. Posted July 17, 2009.

Yesterday, on MSNBC, Pat Buchanan attacked Sonia Sotomayor, specifically, and affirmative action, in general. Included in his attack were such claims as "this has been a country built basically by white folks," that Sotomayor was purely an affirmative-action candidate who lacks real credentials and his suggestion that we need more white, male Supreme Court nominees -- like Robert Bork -- despite the fact that 108 of the 110 Supreme Court justices in our nation's history have been white.

What opponents of affirmative action like Buchanan fail to grasp is that this country was built on affirmative action -- for white males -- and you don't have to go back to the Founding Fathers to see this in action.

If you go back to the 1950s, which Buchanan apparently wants to do, and look at the major private universities, you would find that 20 to 30 percent of the admissions were "legacies" -- people who got there not on merit but because they were the sons of alumni and donors. George W. Bush, of course, is the poster child for this generation of affirmative action babies.

I'd like to see Buchanan, or any conservative, defend Bush's admission to Yale on the basis of merit. And I'd like to stack up Bush's credentials next to Sotomayor's and ask which one was more deserving of admission to a major university, or the bench, or the presidency, or anything.

The white-male affirmative action that bozos like Bush benefited from and want to protect was a monopoly of opportunities; monopolies work to undermine healthy competition and produce bad results.

The affirmative action that emerged from the 1960s civil rights movement was an effort not only to promote diversity of people and opportunities, but to democratize opportunities so that white-male hierarchies did not automatically get all the perks. This has been healthy for America, not only because society has become more diverse, but also because it now is less likely that the truly unqualified -- the frat boys like GWB with no academic credentials and problems with excessive alcohol consumption [but a connected family] -- are not automatically passed on to graduate schools, and then on to unsuccessful business careers, not to mention catastrophic political careers.

I prosecuted employment discrimination class actions for 25 years, in the process forcing many major corporations to hire and promote women, minorities, older people and the disabled. In every single case I had, when the case was over and the workforce was integrated, no matter how bitter the litigation had been, the companies would confide in me that their workforces after "affirmative action" were stronger, more competitive, more productive.

Affirmative action has been good for American business and good for America. Indeed, corporate America, which has seen the benefits of fair-employment practices firsthand, long ago abandoned opposition to it. Too bad racists like Buchanan have failed to pay attention to what really has happened in the American workforce, and in America, over the past 40 years.

Guy T. Saperstein is a past president of the Sierra Club Foundation; previously, he was one of the National Law Journal’s "100 Most Influential Lawyers in America."

#