Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

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The Supreme Court opens a drive-through window for right-wing zealots with (right-wing Christian) religious objections to the law

"I disagree strongly with what the Court has done," Justice Sotomayor wrote, joined by Justices Ginsburg and Kagan in what the NYT's Adam Liptak called "an unusually fierce dissent."

by Ken

The other day I wrote, regarding the last-day-of-term dump of the Supreme Court's Cro-Magnon majority's two most egregious decisions:

Was there any doubt that the Cro-Magnon Five knew that these exhibitions of thuggery were going to produce firestorms? Possibly the atmosphere around the place is getting testier as the four Court moderates understand just what contempt they're held in, and some of the venom that's creeping into their dissenting opinions is also being vented in chambers, and some of the more tender-eared C-Ms are actually noticing. In any case, it seems pretty clear that the release of the Hobby Lobby and Harris rulings was a dirty dump-and-run job.

There may have been an additional consideration here in that both decisions were announced by that fumbling fool Sammy "The Hammer" Alito, and when The Hammer drops an opinion, the ignorance and stupidity start flaking off before the thing hits the ground. You'd like to think that some at least of the C-M justices are capable of some level of embarrassment.

It appears that mounting tension between the Court moderates and the rampaging Cro-Magnons isn't a figment of my imagination. Yesterday Justices Sotomayor, in what the NYT's Adam Liptak describes as "an unusually fierce dissent" -- a dissent joined by Justices Ginsburg and Kagan (the Court's three women, in case you weren't counting) -- went kind of nuclear on what she views as the Cro-Magnon Five's legally meritless and precedentless granting of injunctive relief, in an unsigned opinion, to sectarian Wheaton College, staying the school at least temporarily from having to follow the procedures established under the ACA for nonprofit religious instuttions to hand off responsibility for providing contraceptive coverage to its employees.

Now you may be thinking, well, nonprofit institutions with religious convictions are a different class from the for-profit companies who were allowed by the Hobby Lobby ruling to escape contraceptive coverage. Actually, as Justice Sotomayor points out, this isn't so. It's true that the nonprofit religious institutions were indeed already covered by the exemption already worked out by the Obama administration, establishing procedures for handing off the legally mandated coverage to third parties. This, the Court announced just Monday, "constitutes an alternative that achieves all of the Gov- ernment’s aims while providing greater respect for reli- gious liberty."

But, as Justice Sotomayor notes, the very existence of these procedures was an essential underpinning of Monday's ruling -- since these swell and minimally burdensome procedures had already been worked out, the same procedures could simply be applied to religiously objecting for-profit companies (provided they satisfy the laughably loose criteria noted by Justice Sammy the Fool).

But now, says Justice Sotomayor, the anonymous majority decision grants injuctive relief to a party that not only has no valid legal claim, and no clear expectation of prevailing on appeal, but is seeking to invalidate the very procedures the Court just said on Monday were so swell.

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA [the 1993 Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

In fact, Justice Sotomayor demonstrates pretty convincingly that the majority ruling comes in blunt defiance of every Supreme Court procedure, precedent, and standard of evidence.

Sammy the Fool's dribbling excuse for a ruling, you'll recall, had depended, not on the Constitution, but on application of the RFRA. The RFRA is indeed a monstrosity, and provided legal cover for Sammy the Fool to dribble forth the ruling he was determined to make anyway. However, Justice Sotomayor argues that "Wheaton has not stated a viable claim under RFRA." It simply claims that filling out the form established for the purpose, which the Court was so enthusiastic about on Monday, "impermissibly burdens Wheaton’s free exercise of its religion."

OF COURSE WHEATON AND THE CRO-MAGNONS DON'T
TRULY CARE ABOUT "FREE EXERCISE OF RELIGION"

Nobody is trying to interfere with the college's "free exercise of its religion" -- just trying to get it to follow the law, as established to enable it to maintain its religious convictions, as attested to just three days earlier by the very same judicial Cro-Magnons. Justice Sotomayor writes:

I have deep respect for religious faith, for the important and selfless work performed by religious organizations, and for the values of pluralism protected by RFRA and the Free Exercise Clause. But the Court’s grant of an injunction in this case allows Wheaton’s beliefs about the effects of its actions to trump the democratic interest in allowing the Government to enforce the law.

And of course as many commentators have pointed out, if the challenge in Monday's decision had come from, say, Muslims trying to guard the free exercise of their religion, the Catholic bigots in the C-M majority would probably have spat in their faces.

JUSTICE SOTOMAYOR WRITES: "I DISAGREE
STRONGLY WITH WHAT THE COURT HAS DONE"

Wheaton asks us to enjoin the enforcement of a duly enacted law and duly promulgated regulations before the courts below have passed on the merits of its legal challenge. Relief of this nature is extraordinary and reserved for the rarest of cases. With good reason.

She goes on to demonstrate that the majority action tramples on all the standards previously established for action in those "rarest of cases."

Furthermore, Justice Sotomayor seems singularly unimpressed, actually pretty pissed, by the ruling's blithe rewriting of HHS procedures. It's not just that the Court's just formally announced its approval of those very procedures. Or even that the new ruling's alternative procedures would be both more cumbersome and ineffective than those just lauded by the Court. When, she wonders, did the Supreme Court become a rule-writing authority?

To the Cro-Magnon majority none of this matters, any more than the Constitution and laws it's supposed to be upholding matter, when the get in the way of the C-Ms' radical right-wing agenda. In the end, the Cro-Magnon Five seem to be saying, is that We're in Charge, and the minority moderate justices might just as well occupy themselves with more productive activities -- perhaps cooking and cleaning. Or perhaps the C-Ms have some socks that need mending? Maybe they can find some good use for having three ladies on the Court after all.

Justice Sotomayor concludes her dissent:

In granting an injunction concerning this religious nonprofit accommodation, the availability of which served as the premise for the Court’s decision in Hobby Lobby, the Court cannot possibly be applying our longstanding requirement that a party’s entitlement to relief be indisputably clear.

Our jurisprudence has over the years drawn a careful boundary between majoritarian democracy and the right of every American to practice his or her religion freely. We should not use the extraordinary vehicle of an injunction under the All Writs Act to work so fundamental a shift in that boundary. Because Wheaton cannot justify the relief it seeks, I would deny its application for an injunction, and I respectfully dissent from the Court’s refusal to do so.

Oh pooh, Justice Sonia! Nobody cares! In the end, despite Justice Sammy's idiotic claims about the Hobby Lobby ruling having limited application, both in terms of who may claim the religious exemption and what they may claim religious exemption from (why on earth should it be limited, as he insists, to contraception?), the clear intent of the ruling was to send a happy "howdy" from Your Down-Home Supreme Court to right-wing zealots across the land:

"Come on in, buddy! We're here for you!"

#

Is there any point in answering back to Justice Nino's broccoli blithering? Paul Krugman seems to think so

Justice Nino's got broccoli on the brain.

"[T]he second day of hearings suggested that the justices most hostile to the law don't understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as anti-reform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform."

-- Paul Krugman, on the Supreme Court's health care oral arguments, in the NYT column "Of Broccoli and Bad Faith"

The other day I declined to attempt to parse the shockingly ignorant and irresponsible questioning of the thug-justices during the Supreme Court's oral arguments on the new health-care law. My thinking was that (a) at this point it was no longer necessary and (b) there isn't much point.

After all the Supremes aren't answerable to anyone, and the worst perpetrator, Justice Nino, has been doing it for decades and will undoubtedly continue to do so until his bloated carcass is dragged out of the Court's chambers. For a man always claimed to have one of the great legal minds in, say, the history of Western civilization, the stuff that comes out of his mouth would generally be embarrassing spoken by a backward high school freshman. When he goes into his sarcastic mode, as I observed in (apparently) an earlier draft of that post, he is one of the most loathsome life forces in the known universe.

Dittor for "Mini-Nino," Justice "Sammy the Hammer" Alito, who seems to share the original Nino's fondness for applying what he regards as "common sense" to matters of judicial dispute. It's very much of a piece with the Frothing Right's standard argument that the job of Supreme Court justices, indeed of any judges, is "simply to apply the law (or the Constitution)," end of conversation.

Some of the people who say this are simple-minded enough to believe that such a thing is possible, but you wouldn't think that the opinion of people this profoundly, cosmicaly, cripplingly stupid would be of any consequence. Then there are lots of people who know how stupid the "simply apply the law (or the Constitution)" idea is. They say it because they believe they're lying sacks of doody, who probably believe that right-wingers have an uncontested right to law anytime it's convenient, because they're in possession of, you know, higher truths.

It really doesn't matter who's motivated by which. I think Justice Nino and Sammy the Hammer are smart enough to know they're lying, although in Sammy's case, it's possible that his belief that he by God pulled himself up by his bootstraps means that anyone can and therefore there's no reason why he shouldn't continue to see the job of the courts as protecting the rich and powerful against the inconsiderate, ungrateful importuning of the poor and powerless. Rather self-evidently, then, Justice Sammy's judicial hammer blows aren't based so much on "simply applying the law" as fondly self-regarding reflection on his own life story -- this by one of the most aggressively unreflective humans in public life.

(I do sometimes think that "swing" thug-justice "Slow Anthony" Kennedy really is doing his best to understand legal mattes that come before him and his best just isn't very good. How scary is it that more and more we hear of lawyers framing legal arguments, and even judges writing opinions, in such a way as to conform to the convoluted reasoning of Slow Anthony's recorded opinions, in presumed hope of his having their backs if their cases reach him for deliberation. The mind reels.)

To get back to the health care oral arguments, I think perhaps Paul Krugman is right to insist on pushing back. First, I guess it really is important to have the obvious answers to nonsense like Justice Nino's broccoli blitherings on the record. And second, over the long haul, in some sense Supreme Court justices are answerable to public opinion. It happens ever so slowly and imperfectly, but most justices really do have a level of concern for what they perceive as what "the people" think.

One obvious way in which the "simply apply the law (or the Constitution)" motif dissolves is that if the Court is going to rule on the federal government's constitutional limits in regulating interstate commerce, it has to have a set of understandings about what "commerce" is. Let's go back to Krugman.

Let's start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

Why? When people choose not to buy broccoli, they don't make broccoli unavailable to those who want it. But when people don't buy health insurance until they get sick -- which is what happens in the absence of a mandate -- the worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn't work, and never has.

Of course at this point Nino thinks he has struck to the heart of the matter with his penetrating wit. Or maybe he thinks he's dumped a powerful enough load of bullshit to end a discussion he doesn't see any reason to have, not because of the law or the Constitution but because it doesn't accord with the Law According to Justice Nino.

Professor Krugman insists on having some of that discussion anyway. He knows the thugs of the Roberts Court 5 aren't listening, but maybe he thinks smarter and less dishonest people may be.

There are at least two ways to address this reality -- which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone -- healthy and sick alike -- and use the money raised to provide health coverage. That's what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.

Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage OK, while requiring that they purchase insurance is unconstitutional? It's hard to see why -- and it's not just those of us without legal training who find the distinction strange. Here's what Charles Fried -- who was Ronald Reagan's solicitor general -- said in a recent interview with The Washington Post: "I've never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them."

Indeed, conservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project -- private accounts to replace Social Security -- relies on, yes, mandatory contributions from individuals.)

Krugman notes that Charles Fried doesn't believe there's actually been a change in legal thinking. "Mr. Fried thinks that it's just politics -- and other discussions in the hearings strongly support that perception."

I was struck, in particular, by the argument over whether requiring state governments to participate in an expansion of Medicaid -- an expansion, by the way, for which they would foot only a small fraction of the bill -- constituted unacceptable "coercion." One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid's "coercive" power comes only from the fact that the federal government provides aid to states that are willing to follow the program's guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?

Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power merely because states have become dependent on that aid.

Justice Sotomayor seems to have had here a moment of epiphany as to what the kind of legal minds she's signed on to co-adjudicate with.

Justice Sonia Sotomayor seemed boggled by this claim: "We're going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can't structure the program the way you want." And she was right: It's a claim that makes no sense -- not unless your goal is to kill health reform using any argument at hand.

As I said, we don't know how this will go. But it's hard not to feel a sense of foreboding -- and to worry that the nation's already badly damaged faith in the Supreme Court's ability to stand above politics is about to take another severe hit.

I think Krugman's response is intellectually much more satisfying than mine -- i.e., throwing up my hands and saying "what's the use?" Whether his response will accomplish any more remains to be seen. I suppose it might be used as part of a campaign to educate the screamingly uneducated body politic of America. But I wouldn't hold my breath.

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If you have to treat the right-wing thug-justices like regular people, I'm afraid I won't be able to serve on the Supreme Court

Justice Sotomayor with Prof. David Strauss, who moderated her 90-minute appearance yesterday at University of Chicago Law School

"'The public sometimes thinks the justices don't like each other because they read our opinions and see the barbs going back and forth,' she said.

"The reality, she continued, was captured in advice she received soon after joining the court from Justice David H. Souter, whom she succeeded. Justice Souter said the key to a pleasant life on the court was realizing that every justice was acting in good faith."

-- from "Sotomayor Reflects on First Years on Court,"
by Adam Liptak, in the NYT

by Ken

It seems fair to point out that Justice Souter got the hell out of there at the spring-chickenly (for Supreme Court justices) age of 69, and gave surprising indications -- surprising for someone who kept his thoughts to himself as much as he did while he was on the court -- that he departed less than completely thrilled with the temper of the place.

Nevertheless, I'm sure Justice Sotomayor isn't making this up -- that he really advised her that the key to a pleasant life on the Court was realizing that every justice was acting in good faith. You'll notice that I didn't put this in quotation marks, because these words weren't actually said by anybody except Adam Liptak, who's paraphrasing Justice Sotomayor paraphrasing Justice Souter. Nevertheless, as I say, let's assume it's not like the old children's game of "telephone," where all the players pass along the message they think they've just received, until at the end the beginning and ending messages are compared, and hilarity ensues.

I confess I would be interested in knowing what exactly Justice Souter said that has come down to us as the goal of leading "a pleasant life on the court, and what exactly he "realized" about his benchmates which has come down to us as "every justice was acting in good faith."

For the record, the point this Justice Souter's remark (whatever exactly it was) was intended by Justice Sotomayor to illustrate was "the misimpression that there is animosity among the justices" -- again a paraphrase rather than a direct quote, but Adam Liptak has been doing this a long time, so let's assume he got this too reasonably right.

"The public sometimes thinks the justices don't like each other because they read our opinions and see the barbs going back and forth," she said.

The reality, she continued, was captured in advice she received soon after joining the court from Justice David H. Souter, whom she succeeded. Justice Souter said the key to a pleasant life on the court was realizing that every justice was acting in good faith.

I don't know, there seems to me to be a certain intermingling of categories here:

* whether the justices like each other

* whether they respect each other's judicial temperaments

* whether they think their fellows are "acting in good faith"

Come to think of it, assuming Justice Souter actually said just that, about realizing his fellow justices were acting in good faith, what exactly does it mean? I'm assuming it means that they have sincere views on the Constitution and the law and they are making a good-faith effort to apply those views, er, sincerely. But did anybody really question that?

I can believe that Justices Scalia, Thomas, Roberts, and Alito that government was instituted among men for the purpose of having wildly overprivileged rich white men live lives as God's chosen privileged class, while everyone else eats dirt, or maybe wacko, anti-human extreme right-wing ideology, which is even less nourishing than dirt. In fact, I'm fairly sure they all do believe that. I also believe they're truly bad people.

Therefore I have to conclude that I would have little hope for a pleasant life sitting on a court with such people. And so with some reluctance I'm afraid I'm going to have to take myself out of the running for a seat. Oh, I realize the chances weren't all that great (and I realize it's pretty late in the game for me to be trying to figure out what I want to do when I grow up). Still, just so there's no confusion, I want to make it clear that if I'm asked, I'm going to have to pass.

SOME THINGS JUSTICE SOTOMAYOR SAID
WHICH ARE LIKELY TO STICK WITH ME

Interestingly, these all come with actual quotations. Like this one:

She was asked if she had a special responsibility in cases concerning race, gender and class.

"I do think I have a special role on the court," the justice responded, "but not in the way that you think."

She said that she welcomed becoming a role model and noted that there had been "a tremendous uptick" in the number of Hispanic groups visiting the Supreme Court. Meeting with them, she said, is "a priority for me."

But she added that her background did not affect her judicial work. "I don't come to the process as a woman of color, saying that I have to come to a decision that will help a specific group of people," she said.

To borrow a phrase, good answer!

And Liptak immediately follows this with:

On the other hand, she said she disagreed with Chief Justice Roberts's approach to cases concerning racial equality. In a 2007 opinion in a decision limiting the use of race to achieve public school integration, Chief Justice Roberts wrote that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

That approach, Justice Sotomayor said, was "too simple."

"I don't borrow Chief Justice Roberts's description of what colorblindness is," she said. "Our society is too complex to use that kind of analysis."

(She also "expressed some skepticism about two of Justice Antonin Scalia's legal touchstones": trying to divine the original meaning of the Constitution, which he favors, and considering expressions of congressional intent in weighing statutory ambiguities, which he doesn't. By the way, I can't be the only one who's had occasion to speculate that when Justice Nino natters on about the original meaning of the Constitution what he really means, but is uncharacteristically reticent to say explicitly, is: The Constitution was written by rich white men to preserve this country as the privileged domain of rich white men, and as long as he draws breath he will do everything in his power to restore the country to that noble ideal.)

Then there's this:

She also recalled the advice she got after congratulating Justice John Paul Stevens, who retired last year, on one of his opinions even as she expressed doubts that she would ever be able to match the quality of his work.

"Sonia, I wasn't born a justice," Justice Stevens said, Justice Sotomayor recalled. "I've had many, many years. You have all the skills to be a great justice, but you have to develop them and grow into them."

Oh man, does that sound like Justice Stevens or what? An important part of life is figuring out who our role models are. No, I don't expect Sotomayor to develop into a "liberal" justice, any more than Justice Stevens was one. But given the reality that we may never have another actual liberal justice, the fully human, thinking moderates become that much more important.

Whereas those assholes Scalia, Thomas, Roberts, and Alito could spend another 100, 200 years on the court and all they'll develop into is bigger, stinkier assholes.


POSTSCRIPT: ABOUT JUSTICE KENNEDY

I notice that in the foregoing I seem to have given Justice K a free pass. It's not that I don't think he's an asshole. Is there really any question about that? I just don't think he's quite in a category with the others. Kind of confused, maybe, and maybe not all that bright, but a truly bad person? Not so much.

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Sure, the election makes things even worse for the federal judiciary, but we knew that going in, didn't we?

by Ken

On the most obvious level, if this White House couldn't get its judicial nominees confirmed by the Senate with a majority ranging, at least theoretically, from 58 to 60, what do you suppose the odds are now? Especially now that the Party of No has proof positive that Obstruction Works™. Basically, the administration's way of standing by its picks has been more or less like an especially craven trick-or-treater's: ring the doorbell and then run like hell. At least the trick-or-treater maybe has that trick up his sleeve. At the slightest sign of confirmation opposition, the Obama White House's Rahm-tested technique is to cut and run for dear life, and if anybody asks, we never heard of the poor bastard.

Then when it comes to the higher-level judgeships, the Obama administration has been so cowardly that it's scary to imagine those people going into truly "defensive" mode. It goes without saying that Supreme Court Justices Sotomayor and Kagan represent infinite-orders-of-magnitude upgrades over anything we could have expected to come out of a McCranky administration, or than we can expect to come out of, God help us, a Romney or Palin or Beck administration. These are perfectly competent legal people, and I wish them long and honorable service.

At the same time, as far as we can tell, they represent considerable pullbacks to the legal center from the justices they replaced, Souter and Stevens. Partly this is the apparently standard Obama "negotiating" strategy of setting an initial negotiating position by splitting the difference and then giving away whatever is left. Partly it reflects the president's apparently basic right-of-center orientation. Do we have any reason to believe that anyone in a position of decision-making power wanted a justice more committed to the traditional liberal understanding of constitutional values?

Meanwhile, the confirmation process has become worse. It's now totally under the control of the Right. No, they didn't put up much of a fight, but then, why should they have? Sotomayor and Kagan were replacing justices who were already outside their sphere of influence. In all likelihood would be less pesky from the right-wing standpoint than their predecessors were in their very different ways, but the fact is that as long as the High Court's hard-core extremist majority holds, the minority justices are pretty much irrelevant, except insofar as each of them, because they have actual principles, will occasionally be picked off to support the extremist majority.

REMINDER: IT WASN'T LIBERAL JUSTICES
THAT SOTOMAYOR AND KAGAN REPLACED

I think it's important to restate at every occasion that we're not talking about replacing liberal justices. As much as I respect the sitting centrists on the current Court, there hasn't been a liberal jurist among them since the retirements of William Brennan (1990) and Thurgood Marshall (1991).

The reality for the present and foreseeable future is that no liberal can ever again be considered for the Supreme Court.

So while the truly loathsome creatures who occupy the Republican seats on the Senate Judiciary Committee (my goodness, what a bunch!) now have the confirmation process entirely on their terms; the ground rules are now fixed and unchangeable:

(1) No candidate farther left than dead center can ever again be given consideration of any sort, whereas no limit of rightwardness exists.

(2) No nominee can be confirmed without pinky-swearing allegiance to the right-wing booby-mantra of "just applying the law," thereby guaranteeings that anyone who comes out the other end of the process must by definition be either a liar or a legal ignoramus, because anyone with the legal qualifications to, say, watch The Good Wife, let alone sit on our highest court, has to know that "just applying the law" is literally meaningless.

It still seems to me that the next Supreme Court justice to need a replacement is going to be Justice Ginsburgs. The fact is that no meaningful change in the Roberts Court can be hoped for until once of the extremists justices depart, and there seems no immediate prospect of that. When it happens, though, the new rules of selection and confirmation are going to come into play, savagely.

Of course the judicial arbiters of the Right have now made it crystal clear that with judicial appointments, as with everything else in American political life, lying is not only permissible but mandatory, as long as the lies are right-wing ones. The previous two nominees, John Roberts and Sammy Alito, blithely lied their way through their kid-gloves confirmation proceedings. Far from "just applying the law," they have set out to systematically rewrite the Constitution.

Most of us have had a general sense of the extremist block on the Court, apparently now under the personal management of Chief Justice Roberts, has gone about its work of writing a new Constitution. We've seen, in such well-publicizied instances as the gun rights cases and the Citizens United decision legitimizing unlimited corporate cash for election-buying, the broad strategy: deciding what portions of the Constitution or exististing judicial precedent -- which Roberts and Alito swore to respect (ha ha!) -- they wish to rewrite, then finding the cases and instructing the litigators how the cases are to be argued, and of course then abandoning the old-fashioned principle of deciding cases on the narrowest legal grounds necessary for a decision.

Now, however, it turns out that this is only the public face of what Roberts et al. doing, and literally the least of it. My attention has only been directed to and Oct. 4 Slate piece by Barry Friedman and Dahlia Lithwick, "Watch as We Make This Law Disappear," we've gotten a glimpse of the magician-like skills being perfected the the Roberts Court to perform their wholesale constitutional rewrite while keeping it mostly hidden, following the great insight developed by the right-wing think tanks that in much of our political life it's perception that matters rather than reality.

It's a piece that no one with any interest in our system of judicial review can afford to miss. We're going to need to talk about it, I hope over the weekend.

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Will Sonia Sotomayor Surprise Everyone And Turn Out To Be The Best Justice Since William Douglas Or Felix Frankfurter?

Ken and I were both cheering for the confirmation of Obama's first Supreme Court nominee, Sonia Sotomayor, despite the fact that we both looked her over and saw a moderate rather than the liberal we wished we could fight for. But maybe this "moderate" is just what the court needs. I'm pointing that out today because the first thing she's brought up on the bench could be the most important thing anyone has said from that bench-- important in a good way-- in decades! As Jess Bravin at the Wall Street Journal reported Thursday, she "made a provocative comment that probed the foundations of corporate law."

In his film Capitalism: A Love Story, Michael Moore, correctly, and effectively, points out that the corporate managers are the new American aristocracy in what CitiBank calls our "plutonomy." He doesn't really go into the source of the power that corporations have over democracy: the corporate personhood that Thom Hatmann has been railing against on the radio and in his book, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights

Sonia Sotomayor is smart enough to know that's pretty close to the root of all political evil and she's... on the case. When the 5 corporate shills who make up the Supreme Court majority started discussing overturning McCain-Feingold based on how "corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled," Sotomayor brought up the biggest fear the right has, bigger than race, bigger than choice, bigger than... anything.

Justice Sotomayor suggested the majority might have it all wrong-- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. The government granted charters to corporations, delineating their specific functions. Their powers were presumed limited to those their charter spelled out.

"A corporation is an artificial being, invisible, intangible," Chief Justice John Marshall wrote in an 1819 case. "It possesses only those properties which the charter of its creation confers upon it."
But as the Industrial Revolution took hold, corporations proliferated and views of their functions began to evolve.

In an 1886 tax dispute between the Southern Pacific Railroad and the state of California, the court reporter quoted Chief Justice Morrison Waite telling attorneys to skip arguments over whether the 14th Amendment's equal-protection clause applied to corporations, because "we are all of opinion that it does."

That seemingly off-hand comment reflected an "impulse to shield business activity from certain government regulation," says David Millon, a law professor at Washington and Lee University.

"A positive way to put it is that the economy is booming, American production is leading the world and the courts want to promote that," Mr. Millon says. Less charitably, "it's all about protecting corporate wealth" from taxes, regulations or other legislative initiatives.

Subsequent opinions expanded corporate rights. In 1928, the court struck down a Pennsylvania tax on transportation corporations because individual taxicab drivers were exempt. Corporations get "the same protection of equal laws that natural persons" have, Justice Pierce Butler wrote.

...Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg. "A corporation, after all, is not endowed by its creator with inalienable rights," Justice Ginsburg said, evoking the Declaration of Independence.

How far Justice Sotomayor pursues the theme could become clearer when the campaign-finance decision is delivered, probably by year's end.

It's going to take a lot more than Sotomayor and Ginsburg to turn that ship around and prospects, short of a real revolution, are dim. You think the forces of the status quo are oinking up a storm now-- over health care? The astroturfing operations on anything like this would make the Nuremberg rallies look like elementary school civics classes!

Sonia Sotomayor Will Be Confirmed Tomorrow Afternoon-- 31 Die-Hard Republican Obstructionists Will Vote No

In tomorrow's NY Times Timothy Egan, author of The Worst Hard Time: The Untold Story of Those Who Survived the Great American Dust Bowl, explains GOP opposition to the spectacularly successful Cash For Clunkers program:

They hate it, many of these Republicans, because it’s a huge hit. It’s working as planned, and this cannot stand. America must fail in order for President Obama to fail. Don’t be surprised if the tea party goons now being dispatched to shout down town hall forums on health care start showing up at your car dealers, megaphones in hand.

Think about it; Limbaugh's been shouting it from the roof for as much time as it takes to gestate a baby: "America must fail in order for President Obama to fail.

Tomorrow the Senate will vote to confirm Sonia Sotomayor. The only Republicans committed to confirmation are Kit Bond (MO), Lindsey Graham (SC), Susan Collins (ME), Olympia Snowe (ME), Mel Martinez (FL), Richard Lugar (IN), Lamar Alexander (TN) and Judd Gregg (NH). They've all said they don't agree with all her ideas by that she's obviously competent and well qualified. It's likely that George Voinovich (OH) will join them in voting yes. [UPDATE: Voinovich just told the press he's voting to confirm.] The other 31 Republicans have all declared-- many before she said one word and after refusing to even meet with her-- that they will vote no. Included in that number are Republicans with rapidly growing Hispanic populations in their states. Particularly in jeopardy will be reactionaries John Cornyn and Kay Bailey Hutchison of Texas, John McCain of Arizona, Richard Burr of North Carolina, and John Ensign of Nevada, each representing a state with a significant Hispanic electorate. Hispanics are becoming a factor in Utah and Georgia as well and even far right ideologue Pat Toomey in Pennsylvania, who is running for the Senate, said Sotomayor is qualified and should be confirmed.

So what will these Republican senators tell voters? We weren't really voting against her; we just wanted Obama to fail, regardless of how it impacts anyone or anything else.


UPDATE: Sotomayor Confirmed 68-31

This is a joyous moment for the nation. Sonia Sotomayor, only the third woman and the first Hispanic-American was just confirmed as a Justice of the Supreme Court. The whole GOP crazy squad-- minus the 9 members mentioned above-- voted against her. They sound like John Bolton and Sean Hannity did yesterday when they were sounding the sour notes against rescuing Laura Ling and Euna Lee from North Korea. There really is something wrong with these right-wingers. They really would rather see America fail than watch Obama succeed; it's enough to make your skin crawl.

A friend of mine, Marge Baker, Executive VP of People For the American Way, gave an elegant statement about the historic nature of the confirmation just now.

“The confirmation of Sotomayor is a historic step for the nation and a triumph of the American way. The efforts by the NRA and the far right to sabotage her nomination failed badly, with a large majority of Senators uniting to confirm her today. Those Senators will not regret their votes.
 
“Sotomayor is going to make an exceptional Justice and, in time, will win over some of those Senators who put politics over principle to oppose her today. She brings more judicial experience to the Court than any other recent Justice, she reveres the Constitution, and she has a profound understanding of the impact of the law on the daily lives of Americans.
 
“Some Republican Senators made the calculation that they would be better served by following the lead of right-wing pressure groups rather than the record before them. We believe they miscalculated badly and will come to find that their votes today were on the wrong side of history.”

Are The Republicans Killing Themselves By Playing Up Their Know Nothing Attitude Towards Hispanic-Americans?

Sunday on CNN's State of the Union one Republican who knows he will never get to give one, scratched around the reason why. “On the issue of the Hispanic voter," pontificated John McCain, "we have to do a lot more. We Republicans have to recruit and elect Hispanics to office. And I don't mean just because they’re Hispanics, but they represent a big part of the growing population in America. And we have a lot of work to do there.”

They have a lot more work to do now than they even did before McCain went down to his historic defeat last year, losing far more Hispanic voters than even George Bush. McCain only managed to eke out a disappointing 31% of Hispanic votes, where Bush had won 44% in 2004-- in a population that made up 9% of those who voted (up by a percentage point from 2004).

Latino voters shifted in huge numbers away from the Republicans to vote for Senator Barack Obama in the presidential election, exit polls show, providing the votes that gave him unexpectedly large margins of victory in three battleground states: Colorado, New Mexico and Nevada.

Mr. Obama’s pull on Latino voters also extended to Florida, where a majority of them [57%] voted for a Democratic presidential nominee for the first time since at least 1988, when exit polls were first conducted in the state.

In a year when turnout among many groups surged nationwide, the number of Latinos who went to the polls increased by nearly 25 percent over 2004, with sharp rises among naturalized immigrants and young, first-time voters, according to a study by the National Association of Latino Elected and Appointed Officials. Hispanic support for the Democratic nominee increased by 14 points over all compared with 2004, the biggest shift toward the Democrats by any voter group.

For the first time, Latino voters emerged as a mobilized Democratic voting bloc in states across the country, Latino officials said.

It was even worse for McCain and Republicans among younger voters. The Republican candidate didn't even crack 20%. Could it get worse? Well, with high profile xenophobes and racist spokespersons like Jim DeMint (R-SC), Mike Pence (R-IN), John Boehner (R-OH) and the two senatorial Oklahoma kooks getting lots of TV face time, it can get a lot worse, especially with divisive GOP allies in the media like Limbaugh, Dobbs, Beck, Hannity, Coulter, etc, being looked at as existential dangers to the Hispanic community. The impending confirmation vote for Sonia Sotomayor, the first Latina nominated to the Supreme Court, is turning into a disaster, for both the GOP and, potentially, for McCain himself. Last Thursday we talked about how McCain is in the awkward position of having to decide to alienate his own state's large and growing Hispanic population or his own party's crazy and getting-crazier-by-the-day base when he decides on his confirmation vote. Yesterday, shamefully, he decided to stick with the racists and xenophobes in the base and forget the Hispanic voters he used to court. He's voting against confirmation-- and his statement is filled with gross lies and pandering to white supremicists.

Sunday, Digby went much further in explaining the danger Republicans face from their own crazed opposition to all things Obama mixing in with a virulent nativist strain of racism and xenophobia, to make jackasses of themselves voting against Sotomayor for no discernible reason.

This is what I find inexplicable about Republican strategy. They knew before she was nominated that the person Obama named was 99% likely to be confirmed. They knew she was replacing a liberal on the court, so no harm no foul in terms of the balance on the court. And they know they have a problem with Hispanics, the fastest growing demographic in the country. Allowing a large margin to vote for Sotomayor would be an easy way to ease some of those tensions, buy some good will and provide some cover the next time the Democrats try to block a nominee, without having to actually do anything. It's just good politics.

And yet they've gone out of their way to publicly sully the woman's reputation and now are pulling every possible string to keep the vote as tight as possible, thereby reinforcing the notion that they hate Hispanics so much that they will do everything in their power, even when they are sure to lose, to keep one from the Supreme Court.

I've heard people make the case that this is payback for Thomas, which is seen as the destruction of a good man's reputation for no good reason. But aside from the merits of the case, (which was about sexual harassment being ignored by a bunch of powerful, pompous men, not race) the Democrats weren't in the process of losing the black vote in vast numbers when it happened and because the Dems had been the party of civil rights by that time for more than 30 years. If anything, they were going against type.

This is so politically obtuse that makes me wonder what in the hell these people are really worried about. It occurs to me that they are seeing something much more devastating in their numbers than just losing the Hispanic vote of the future. It seems they must be afraid of losing the white working class. Assuming they are behaving rationally (which is assuming a lot) the only logical reason they could have for ginning up all this racial animosity is if they feel the need to secure their base with the old tried and true racial resentment. If they were secure there, they could afford to be magnanimous toward Sotomayor in a situation that makes no substantial change in policy.

Of course, it could also just be that they are a bunch of sexist, racist bastards themselves and just can't stand the idea of a woman of Puerto Rican extraction being in power. With these people it's usually a good idea to apply Occam's Razor and call it a day.

Even just putting aside other Hispanic groups and just looking at Puerto Ricans-- and forgetting about big city votes that always go Democratic in NYC, Chicago, Philly, Newark and Hartford where so many Puerto Ricans have been concentrated traditionally-- the GOP is endangering 6 of their own candidates in Florida (where Puerto Rican voters put Alan Grayson and Suzanne Kosmas over the top in 2008 and where they could pose a significant threat this year for birther Bill Posey, for doddering relic Bill Young, and for whomever runs for Adam Putnam's old seat and against Kathy Castor), 2 in Pennsylvania (Charlie Dent and whomever they get to run for Jim Gerlach's seat) and Frank LoBiondo in New Jersey. Surveys of non-Puerto Rican Hispanics show that they aren't terribly pleased with the Republican Party jihad against Sotomayor either and it isn't going to help Republicans reclaim lost seats in New Mexico, Colorado, Arizona, and Nevada and could jeopardize Republicans in almost every region of the country. McCain has been wrong about almost everything but he wasn't wrong yesterday when he told the CNN audience that “I am of the belief that unless we reverse the trend of Hispanic voter registration, we have a very, very deep hole that we’ve got to come out of." Not wrong-- just too late... and still digging it deeper and deeper. Even radical right sociopath Pat Toomey acknowledges Sotomayor is a qualified and mainstream nominee, implying that McCain is nothing but a partisan hack.

Lamar Alexander Abandons GOP Obstructionists-- Will Vote To Confirm Sotomayor

Some felt it was remarkable that conservative Lindsey Graham (R-SC) voted to confirm Sonia Sotomayor on the Senate Judiciary Committee. Once Specter did his little fence jump though, it was inevitable. The Judiciary Committee rule says that at least one Republican has to vote "yes" on a nominee in order for the committee to send a recommendation to the full Senate. (This may have something to do with why not one single judge nominated by Obama has been confirmed so far.) Anyway, the Republicans secretly agreed internally that they had to put on a big anti-Sotomayor show for the drooling racist savages in their base but that they couldn't afford to actually block the nomination without risking sustained, perhaps even fatal damage at the polls. So someone on the committee had to take the political risk. The seven Republicans on the committee are all very right-wing: Jeff Sessions, the KKK member from Alabama, Orrin Hatch (UT), Chuck Grassley (IA), Jon Kyl (AZ), Graham, John Cornyn (TX) and Tom Coburn (OK). It was always a question of whether it would be Hatch, Grassley or Graham who would provide the one vote to let the nomination move forward.

Grassley begged out citing a tough re-election bid in 2010, and Hatch pointed out that his state's party has been taken over by teabagging radicals who have been replacing conservatives with extremists-- last year Chis Cannon was dumped for far right lunatic fringe Jason Chaffetz and this year Hatch's colleague Bob Bennett is facing political extermination at the hands of wingnut Mark Shurtleff. That left Graham who won't have to face the voters again until 2014.

But then today, just as the most conservative (and aisle-crossing) Democrat in the Senate, corporate shill Ben Nelson (NE) announced he might not vote for confirmation, up steps the first member of the Republican Senate Leadership Team, Conference Chair Lamar Alexander (TN) to announce that he's supporting confirmation. “I will vote to confirm her because she is well-qualified by experience, temperament, character and intellect to serve as an associate justice of the United States Supreme Court,” he said, also pointing out that her “political and judicial philosophy may be different than mine, especially regarding Second Amendment rights.”

Aside from Nelson there are a number of Democratic senators who have proven they have no backbone, particularly when it comes to standing up to the NRA, which is vigorously opposing Sotomayor. Worst among the Democratic cowards is Mark Begich, a freshman from Alaska, who has proven a terrible disappointment to the progressives who helped him narrowly defeat Ted Stevens last year.

Many eyes are now focused on John McCain-- who also faces the voters next year. The radical right kooks at the Moonie Times are demanding in an editorial today that he oppose confirmation. But as the somewhat savvier Hill pointed out this morning, McCain has been hiding out and ducking the issue-- and with good political reason: he's scared to move in either direction.

Somewhere, in his new life as a political hermit, Sen. John McCain must be grinding his teeth. Facing a primary challenge from the right in his campaign for reelection, McCain (R-Ariz.) has gone from spending nearly a decade as a hyper-exposed, perennial presidential candidate to being someone you can only find on Twitter.

But with a tough decision to make any day now, McCain will reluctantly do what he has avoided for so long: make news. This will happen when McCain announces his vote for or against the confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court. Either choice will be surprising-- risk losing votes in a primary by supporting her, or risk losing votes in the general by alienating Hispanic voters in a purpling state where the Hispanic population is double the national average. President Barack Obama’s selection of Sotomayor was exactly the kind of complication McCain really didn’t need.

McCain’s attempt to woo Arizona Republicans is challenged by his maverick identity and long history of bucking his party. A founder of the Minuteman Civil Defense Corps has announced his candidacy and criticized McCain for “reckless bailout spending” (he voted last fall for the Troubled Asset Relief Program) and a record of “opting to hold our nation’s border security hostage to his amnesty schemes.” So while McCain has spent time blasting Obama’s energy reform plans, his reaction to the election in Iran and his policies that have grown deficits and debt, he hasn’t spent much time keeping that promise he made on election night 2008: to “do all in my power to help him lead us through the many challenges we face.” Most notable is the absence of the bipartisan dealmaker in the midst of the brutal battle over healthcare reform.

Two of McCain's trusted gay pals, Lindsey Graham and Charlie Crist, have taken different positions on the Sotomayor nomination. With Graham voting yes, Crist-- under pressure from right-wing fanatic Marco Rubio-- has taken the gamble that Florida Latinos won't care that he's opposing the first Latina nominated to the Supreme Court. "Perhaps," speculates The Hill, "McCain is consulting with both Graham and Crist. We will learn soon-- likely by Tweet rather than a press conference-- which friend McCain is going to disagree with."

As of today 6 Republicans (not counting Arlen Specter)-- Olympia Snowe (ME), Susan Collins (ME), Dick Lugar (IN), Lindsey Graham (SC), Mel Martinez (FL) and Lamar Alexander (TN)-- have pledged to vote for confirmation. Many of the lunatic fringe extremists have already declared they will oppose confirmation, including the other 6 Judiciary Committee members, Jim DeMint, Jim Bunning (KY), Jim Inhofe (OK), Miss McConnell (KY), Kay Bailey Hutchison (TX), Thad Cochran (MS), Richard Burr (NC), Mike Johanns (NE), Sam Brownback (KS), Pat Roberts (KS), Bill Bennett (UT), Jim Risch (ID), Mike Crapo (ID), and of course, Richard Shelby (AL). Reactionary Democrats who play footsy with GOP interests who have not announced one way or the other-- aside from Begich and Nelson-- include Blanche Lincoln (AR), Mark Pryor (AR), Evan Bayh (IN), Tom Carper (DE), Max Baucus (apparently too busy thinking about how to wreck health care reform for his corporate donors to have even thought about the historic Supreme Court nomination), and Michael Bennet (CO). This afternoon, for example, 2 putative Democrats, both far right of the mainstream, voted for another obstructionist anti-Obama bill, this one offered by right-wing fanatic David Diapers Vitter. Who were the 2 miscreants-- Nelson, of course... and Blanche Lincoln, who apparently enjoyed the Blue America TV ads and is asking for more.

Today's Hotline guesses that Judd Gregg (NH), McCain, Kit Bond (MO), George Voinovich (OH), and John Ensign (NV) are the most likely to join the growing Republicans-for-Sotomayor Club and brave the overwrought hysteria of the Republican Party fringe. Ensign, though, they rate as "a longshot."

[T]he beleaguered Ensign has a little more than three years to rehabilitate his reputation before his re-election bid. Where to start: his conservative base, or the 25%-and-growing Hispanic population of his home state?

UPDATE: Amazing-- A Democratic Senator, More Or Less, Announces His Support For His President's Nominee

Break out the champagne! Looks like someone had a talk with that shithead Baucus. I guess killing health care is all he'll do for the Republicans this month.

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."

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Well, what do you suppose Pat Buchanan would have to say to get his sorry ass fired by MSNBC?

by Ken

We need to talk about the latest installment in Rachel Maddow's ongoing exploration of the ever-stranger connections emanating from the now-infamous C Street "church" of the Famlly, along with the ranking guide into the Family sanctum, Jeff Sharlet (whom she now has to apologize to profusely for dragging him away from his hoped-for vacation, as the story just won't stop metastasizing).

We'll get to that, but first I guess we really need to talk about another segment on Rachel's show last night: Pat Buchanan's appalling attempt to defend his column attacking Judge Sonia Sotomayor, whom he has taken to ridiculing as "an affirmative-action judge." Of course, to appreciate the full measure of viciousness intended, you have to understand that 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.

(And he is only too happy to rattle off the list of names of the white male victims, even if he can't pronounce the name of the sainted Frank Ricci -- I guess those Irishmen have trouble with Eye-talian names), and it seemed to me that a woman slipped onto the list of white males. Let's not even get into the questions of whether a program of systematic discrimination can actually be conducted against a nation's power elite, or whether a class of victims whose names can be recited in one breath by the craziest of crazy old coots really qualifies as, for want of a better term, a "class action.")

Rachel is taking some heat for her remarkable efforts at maintaining her poise, and even I sometimes wished at times that she would "lose it." But of course if she'd done that, she would have handed the even to Pat, who may be an old coot now but who has been fighting these fights for a lot of decades now, and knows that as soon as you reduce the opposition to enraged spluttering, you've won.

Anyway, Heather over at Crooks and LIars had the patience to do a point-by-point summation with commentary of this sad and sordid interview. I was in no condition to observe the spectacle closely enough to do so even if I had been inclined. I hadn't planned to watch it, and wish I'd stuck to my (sensible) original intention. It drove me storming around my apartment in -- what else? -- a spluttering rage.

Here's Heather's account:

During what was at times a bit of a heated exchange, but way too chummy in general -- given the type of browbeating Pat Buchanan actually deserves for his continued racist remarks on MSNBC -- Rachel Maddow ends up telling Pat Buchanan to quit living in the 1950s, and that he's fanning the flames of racial hatred with his rhetoric. Before that, she gives him ample opportunity to put on full display, again, just how horribly he thinks the poor, downtrodden white man is being treated in America.

Some of Pat’s "finer" moments during the interview.

-- Comparing Sonia Sotomayor to Harriet Miers.

-- Calling her a purely affirmative action candidate by the President and completely dismissing her academic accomplishments.

-- Saying that “white folks” built this country.

-- Calling Bork and Scalia “real scholars” and "tremendous minds" and saying Sotomayor hasn’t risen to their level.

-- Saying the only reason she was appointed to the bench was because of affirmative action.

-- Complaining about Sotomayor getting a chance to go to the best schools and knocking out someone who might have gotten better grades than her. When has Pat Buchanan ever complained about the likes of George Bush and other legacy children being allowed into the best schools because of who their parents are, and knocking other kids out? I would guess he has not. I’ve certainly never heard him bring it up. Rachel should have called him on that one if he'd let her get a word in to do it.

When asked if she got the grades she did in college because of affirmative action, saying that in the Ivy League schools, half the kids graduate cum laude now. Really? So they're raising students' grade point averages in college now and no one told the rest of us about it? Then retreating to saying he bet he graduated higher in his high school class than she did, and going so far as to say he probably did better than she did in college as well, but he doesn't think he's qualified to be on the Supreme Court.

So being a judge for seventeen years doesn't count for anything in Pat's world. And Pat says he did better than she did in school, without backing that up with any specifics. If anyone knows just what his grade point averages were in high school and college, I'd like to find out.

He compared the track team at the Olympics potentially being all black or a hockey team being all white to the racial make up of the Supreme Court. Yeah, that's exactly the same thing, Pat. He seems to have forgotten that there was a time not all that long ago that blacks in America were not even allowed to play on the same team as white people.

And he refused to say there is anything wrong with the fact that the Supreme Court has been made up almost entirely of white men for all these years and might benefit from other races being represented. He dodged back opining over the firemen they trotted out there as a political game at the hearing rather than answer the question.

I really don't understand why Rachel felt the need to bring him on if she was going to let him lie and talk over her for the better part of the interview. She's just not aggressive enough to deal with the likes of this bully, and he knows it. MSNBC has allowed Buchanan to become a racist sideshow on their network. As Media Matters has wondered: What would Pat Buchanan have to say to get himself fired from MSNBC?

Now that, Heather, is a splendid question. What would Pat Buchanan have to say to get himself fired from MSNBC?

For the record, MediaMatters' Jamison Foser didn't write the piece to which she directs us in response to last night's Rachel Maddow appearance. He wrote it on June 8.

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