Is the nitpicking worth the effort?

The fight continues. The right wing says Sotomayor doesn't understand the role of a judge; the left says that neither does Scalia. The right wing claims she's a reverse racist; the left claims so is Alito. Ok. Whatever.

I think we're going to have to accept that Sotomayor will be seated. Unless a background check turns up literal skeletons, there's not much about her that's objectionable. She's pretty lukewarm. The thing that concerns me most is that, while she seems to be competent at her job as a judge, both trial and appellate, she is by no means outstanding. She hasn't written anything groundbreaking, hasn't put forth an opinion that changed anything significantly. She hasn't written anything that would give us a clear picture of how she would decide future rulings.

What types of decisions will come to the Court in the future (or, rather, will they bring upon themselves, with their writs of certiorari)? Will she overturn Roe? Unlikely, but who knows?. What about Heller? I hope not. If Olson and Boies's suit gets to the Court, how would she decide? I don't know. I don't know how fruitful it is to speculate on any opinion she would give once she got there. Souter was nominated by Bush I, but he's consistently written more left opinions than right. Similarly, Blackmun, nominated by Nixon, was expected to be a strong conservative, but drifted more and more to the left during his tenure; he wrote the majority opinion for Roe. Her record thus far seems to be full of straight, quiet opinions, nothing brash, nothing that stands out. Who knows what'll happened when she's seated on the bench?

I must have been sick that day in law school

You know, the day the professor gave that aside where he said, 'look, disregard everything I'm teaching you about the rule of law, the role of the legislature, and the Constitution. The judicial branch is the most important one- it's where the policy is made.' That's probably why I felt like everyone else knew something I didn't. Huh.

Judge Sotomayor at Duke Law School in 2005:



There's a lot of talk going around about prospective Justice Sonia Sotomayor and speculation about how she'll act if she gets approved. One comment I've seen made consistently is not concerning her views, but about the blantant manner she expresses them.

From Brad at TLP:

From our newly-named nominee to the Supreme
Court:

I would hope 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 hasn’t lived that life.

Three problems with this:
1) Who is to say that the experiences I have, as a white male, aren’t rich?
2) Why do the proper adjudication of questions on law change based on the “richness of experience” of the judge?
3) What is a “better conclusion”? According to whom?

About the only way that such a statement makes sense is if you assume that the role of a judge is more “nuanced” than simply to apply the law dispassionately and predictably, but rather to enforce “social justice”. I am, of course, not surprised by such a conclusion from one of this administration’s nominees. But I’m a little surprised that it’s stated this blatantly.

I am not sure yet what this says for the future of our judiciary. Considering the way the rest of the government is turning, it's getting pretty scary to contemplate.

What's the rule of law got to do with it?

More speculation abounds concerning Obama's prospective pick to replace Justice Souter when he retires next month. I've heard names like Elena Kagan, Ruben Castillo, and even (*gasp*) Janet Napolitano. It's really sort of pointless to wonder about who specifically it will be, since there are so many from whom he could choose.

So what is he saying about the type of person he is looking for?

He told C-SPAN recently,

"I think in any given pick, my job is to just find somebody who I think is going to make a difference on the courts and look after the interest of the American people. And so, I don't feel weighed down by having to choose a Supreme Court justice based on demographics. I certainly think that ultimately we want a Supreme Court that is reflective of the incredible variety of the American people."

Well, that's nice that he doesn't feel compelled to choose a person solely based on a physical characteristic. While in the end, he may favor affirmative action anyway, he's so far claiming that it won't be his primary motivation.

He also said,

"What I want is not just ivory tower learning. I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works. Those criteria of common sense, practicality, a sense of what ordinary Americans are going through every day -- putting that in the mix, when the judges are looking at cases before them, it's very important."

Ok... Now the Constitution doesn't say much about the requirements to be Supreme Court Justice. In fact, it doesn't anything, other than they "shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." So, while there's no official specifications, there's a rather large precedent of Justices who are well-educated, knowledgeable about the legal system. And, well, they're usually hired to follow the Constitution. It's alarming to see that in all of his speeches about choosing someone of the people, judicial restraint is not among the first things out of his mouth.

How does that bode for us, with Obama choosing for us a "citizen's citizen" to sit on the bench? Conservatives are terrified that he'll nominate a liberal who will do all kinds of dastardly things, like reaffirming Roe v. Wade and legalizing same-sex marriage. Liberals wonder if he'll seat a moderate who will swing with Kennedy and overrule Roe v. Wade (because those issues are the most important for our country). Me? I'm afraid that he'll appoint someone who embodies what he means when he says "different times call for different justices."