Thursday, July 16, 2009

Political theater: Republican mugging of Sotomayor

A fascinating example of political theater is taking place daily this week in Room 216 of the Hart Senate Office Building. But lets go to the end of the play before we talk about its substance. According to all commentators who have any knowledge about the likelihood of the confirmation of Judge Sonia Sotomayor it seems virtually inevitable. So what are the Republicans doing?

The latest Republican strategy to get back to the Magic Kingdom is to undermine the credibility of Judge Sotomayor so that they can win the predominantly white male vote. This is the same strategy they are following against President Obama. If you can't beat them destroy their credibility with your white-male constituency. Here's Pat Buchanan (when he's not the cute conservative on MSNBC but his real right-wing self):
And if Republicans, in 2010 and 2012, can point to the court and say Sotomayor is their kind of justice, and Scalia, Roberts, Alito and Thomas are our kind of justices, that will not be all bad.

Justice Douglas, Ramsey Clark and Jocelyn Elders, after all, did a whale of a lot of good for the Republican Party in days gone by.
In other words, they know she's going to be confirmed, so they want to damage her as much as possible. We the people are just a roadblock on their way back to power. Or try the misnamed right-wing Committee for Justice' executive director Curt Levey:
The Committee for Justice has completed an extensive study of Judge Sotomayor's record, and we have determined that she is . . .

1. Not qualified to serve as a Justice on the Supreme Court.

2. Rules according to her own ultra-left political views without regard to the law.

3. Has little respect for the Constitution of the United States, especially the Second Amendment.

In fact, a strong case can be made that Judge Sotomayor is the most radical nominee for the Supreme Court in U.S. history. This is a frightening prospect for freedom's survival in America.
It will be clear to anyone who has watched even a few minutes of the Sotomayor Senate confirmation theater that this is pure and unadulterated nonsense. First these people tried and failed to label President Obama a socialist and now they will fail again to label the Judge "ultra-left." There are a number of criticisms that Republicans have made against Stomayor. High up among these criticisms is the accusation that she is likely to apply "empathy" (heaven forfend a human judge) in msking her decisions. Here's what Michael C. Dorf said regarding the Supreme Court's "empathy" in the now infamous Ricci (firefighters) case:
Justice Ginsburg calls the majority on this point in her dissent, stating that it is understandable that her colleagues would have "sympathy" for the high-scoring white firefighters, given the effort they made, but that even under the majority's analysis, this fact has no legal relevance. In response, Justice Alito remarked that "‘sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law." Yet, like the majority, Justice Alito never tried to explain how or why the time and effort expended by promotion applicants were relevant to the question of whether the department's decision to discard the test violated Title VII.

"Sympathy," of course, is a close cousin of "empathy," an emotion that President Obama has said he values in a Justice, and a trait that has been ridiculed by some on the right as improper in judges. It is thus noteworthy that in Ricci, the conservative Justices appear to be the ones ruling based on sympathy (or empathy), even as they deny it.
To take this a step further, many people argue that the current right-wing dominated Supreme Court is the most activist court in recent times (as it was in changing the law to overturn Ricci).

One other thing that the right is using the Sotomayor nomination to do is raise money and to draw lines that they hope "will make it harder for Mr. Obama to choose a more outspoken liberal in the future," according to today's (7/16) New York Times.

But fundamentally I think the Republicans have once again insured their stay in the political desert for 40 years.

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