Straying from our usual preoccupation with pop culture, the events of the week simply couldn’t keep me from writing a little bit about American politics. Both as a political junkie and as a gay man, this week has been really interesting. On Tuesday, President Obama nominated Sonia Sotomayor to replace the retiring Justice David Souter on the U.S. Supreme Court, and Wednesday the California Supreme Court, in a 6-1 vote, declared that Proposition 8, the amendment to the state constitution effectively banning gay marriage, was indeed constitutional. This post will almost entirely consider the political aspects of the Supreme Court nomination, while at the same time discussing identity politics, and touching briefly upon the judicial gay agenda. I might return to Prop 8 in a future post.
Some conservatives unconvincingly argue that Sotomayor could be to Obama what the obviously unqualified Harriet Miers was to the political capital of George W. Bush, but this should be discarded as a combination of conservative wishful thinking and simple hot-headedness. The Republican Party in shambles, they need to drum a fight – even a fight they’re near certain to lose – in order to energize the base around a common cause. The parallel breaks down on several points. Firstly, opposition to Miers came just as much from Republicans themselves as it came from Democrats. Judging from the roll-out of Sotomayor, she is very unlikely to face significant opposition from the president’s party. Second, in a sharp contrast to Harriet Miers, Sotomayor is obviously qualified. She has more judicial experience than other of the sitting justices had when they were confirmed to the High Court, she’s considered an intellectual heavy-hitter by everyone except GOP blowhards and 2012 contenders 0ut on a base-pleasing mission, and she has a voluminous record of narrow judicial opinions and moderate-to-liberal votes, making it hard for Republicans to accuse her of judicial activism. Barring a return to scorched-earth tactics of the Borkian past , she will be easily confirmed, possibly even by a wide margin, as some Republicans could be expected to defer to the President’s power to name justices.
The analysis of her voting record, of course, has left some liberal groups unsure about where Sotomayor stands on important issues. The nature of the lower courts means that they don’t get to weigh in on many of the hot-button issues of the culture wars, and her record on abortion and gay rights issues is thin. This could actually be one of the reasons why Obama picked her. A long trail of controversial votes could easily have derailed the debate, and the affirmative action case in Connecticut could prove controversial enough, even though it will probably not endanger her confirmation. I come from a political culture in which the judiciary holds far less power than it does in the United States, and thus I may sometimes find it difficult to accomodate to their law/politics discourse. As a leftist liberal (these terms are so toxic in American political discourse that they run the risk of becoming completely meaningless, but I’ll try to lay out my political philosophy if asked) I would ideally have hoped for Obama to nominate someone whose judicial philosophy would be more transformational, closer to Earl Warren than Stephen Breyer. Knowing that such a nominee would not be confirmed (what with the Democratic Party tent growing bigger and more politically diverse by every election cycle, housing everyone from the unabashedly liberal Wisconsin Senator Russ Feingold to the fairly conservative Senator Ben Nelson of Nebraska), I’ll simply have to hope that Sotomayor will be a reliable member of the four-member liberal block on the court, siding with Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer in most cases. In the weeks heading up to her confirmation hearings, we are likely get a fuller picture of her judicial views, eventually supplemented by her answering the questions of the Senate Judiciary Committee.
This is where the whole thing turns a little unpleasant. I’m sure President Obama would never nominate Sotomayor if he wasn’t reasonably sure that she would pursue a liberal voting record on issues important to him and his party’s constituencies, but on the other hand, one can never know for sure. The classic example in this regard of course is Justice Souter, who was appointed by the first President Bush, and opposed by Democratic activists because he wouldn’t make any definitive statements on his views on Roe v. Wade, the landmark abortion ruling. Souter turned out to vote to uphold Roe, as did another Republican appointment, then-Justice Sandra O’Connor, making their Republican supporters absolutely furious. Theoretically, the same thing could happen with Sotomayor in the opposite direction, but when President Obama implicitly asks us to trust his judgment on this, it feels much easier to do so than it ever was when his ever-unreliable, notoriously truth-bending predecessor did.
Of course, you wouldn’t find any admission from elected Republicans that Sotomayor is basically a centrist. Hoping to advance the all-too-predictable judicial activist narrative, they have pounced on several of her previous statements. Obama’s statement that he considered empathy an important quality in a justice, combined with his own words when explaining why voted against confirming Justices John G. Roberts and Samuel Alito – that they were likely to vote in favor of the strong over the weak in those five percent of cases in which these qualities could be decisive – have proved somewhat unhelpful. Also, Sotomayor saying that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has lived that life” didn’t exactly help things. As CNN’s Gloria Borger eloquently points out however, this hyperbolic quote was not only taken out of context; if read understandingly, she has a fairly obvious point. Sotomayor’s point was not to say that Latinas are by nature better than white males, nor was it to say that judges should let their personal experiences trump the principle of equality before the law, as some critics have claimed. In my opinion, she was just stating the obvious, that the application of law could not exist in a vacuum, and that it’s both naive and a little dangerous to believe that your background will never, at least implicitly, impact your decisions. Like Borger, I don’t see empathy and the ability to be open about on what grounds you reach decisions would make you less desirable as a Supreme Court justice. Which, I guess, places me right in line with the liberal judicial establishment (and that famed leftist David Brooks) former Bush speechwriter Michael Gerson fulminates against in Washington Post:
In elite academic settings, it is commonly asserted that impartiality is not only a myth, but also a fraud perpetuated by the privileged. Since all legal standards, in this view, are subjective and culturally determined, the defenders of objectivity are merely disguising their exercise of power. And so the scales of justice — really the scales of power — need to be weighted by judges to favor the “weak” and the “powerless.”
Sotomayor’s awareness of how background could play a role in the application of law, could, theoretically, prove to be a boost for gay rights proponents. I’m not even close to suggesting that Sotomayor, or Carlos Moreno, the only judge to dissent when the California Supreme Court struck down the Prop 8 challenge this week, would vote on basis of their backgrounds rather than their broader judicial philosophies and the particular case, but it could be that a minority justice like Sotomayor would be more sympathetic to the claims for equality than some of the conservative, white males, for that very reason. This is pure speculation on my part, as we do not yet know Sotomayor’s views on gay rights issues. And as important as the ’empathy’ question may seem – it has been grossly overblown by Republicans searching for attack lines – the broader judicial philosophy will prove far more important still. Jeffrey Rosen, who came around to endorse Sotomayor this week, after having written a very critical piece about her in The New Republic earlier this month, highlights the different paths judicial liberalism could take, in an excellent essay for The New York Times Magazine this weekend. I’m not familiar enough with judicial thought to present his very interesting thoughts with the necessary nuance, I recommend you read it yourself. It also contains a illustrative example involving the approach to gay marriage.
If you’re still with me, I would like to thank you for delving into the areas of law and politics with me. We’ll be back on the pop culture carousel next time, I promise.
I’m strangely numb to the Sotomayor pick. I’m a little angry at President Obama for not issuing an executive order ceasing military discharges through Don’t Ask Don’t Tell. Until my government stops firing people for being gay, how can I expect much from them?
It’s Justice Scalia I want gone. Unfortunately, I don’t see him retiring voluntarily while Obama is in office. It would take some tragic health event to force him out. Then we’d have the possibility of a real ideological shift on the Court.
That said, you never know how a newbie will vote. Losing a liberal justice and replacing him with the unknown means the liberals have more to lose here than anyone.
I liked this post!
Thanks, Bryan, I appreciate it.
I of course totally agree on DADT. I guess Obama has taken the experiences of the Clinton administrations a little too literally. Since the ‘gays-in-the-military’ issue bogged down Clinton for the first several months, it seems to have slipped off Obama’s agenda. How can he be a ‘fierce advocate of equality’ and still sit idle by when DADT keep fine servants from the ranks of the military?
I also sensed there was some real movement on DADT. Former Senator Sam Nunn, a -Democrat from Georgia, and leading the Democratic opposition against gays in the military back in ’92, has since said he wants DADT repealed, and Gen. Colin Powell thinks DADT is counterproductive. We could of course get worked up about why no one is stating the obvious – DADT is not only about what’s ‘wise’ from a military standpoint (which a broader recruitment base would obviously be), more than anything it’s about basic fairness.
Sadly, it seems like Obama will face so much opposition to closing Guantanamo (a decision I wholeheartedly support, though I’m not sure about the roll-out), that he will shelve repealing (or ‘revising’ – whatever that means) DADT, for fear of stirring up anger among the military crowd. It irks me too, Bryan.
You’re right about the ideological balance on the court. Even if Obama gets reelected, he’s unlikely to get to orchestrate an ideological shift, because Justices Stevens (age) and Ginsburg (health) likely are the next to go. Scalia seems to really relish his status as the bomb-thrower and intellectual force of the conservative block, and Roberts and Alito will probably remain on the bench for decades. So yeah, I know we say about every presidential election that this could the most important election ever with regard to the Supreme Court, but even this one was mostly a question of liberals getting to do damage control of liberal retirements.
I certainly hope that Sotomayor will turn out to be a reliably liberal vote, but I would have wanted Obama to name somwho could have gone toe-to-toe with Scalia on the issues, instead of just sitting by writing ‘narrow, moderate-to-liberal’ opinions.
I guess I’ll hold my final judgment until the confirmation hearings.