Thursday, May 28, 2009

Dodging a Bullet

Conservatives are staking out positions in their latest internecine battle: how hard to go after SCOTUS nominee Judge Sonia Sotomayor.

My take: in this match we take a dive.

What the smart liberals wanted was to find a leftist Scalia, an intellectual heavyweight and lucid writer who could not just vote the right way, but set out principles of substance in a way that impresses and persuades the uncertain and undecided. A figure the liberals haven’t had for over 50 years, since Louis Brandeis left the court. And oh yes, and someone nice and collegial, who, unlike Justice Scalia, does not frequently alienate centrist judges by pointing out how dumb their opinions are.

Sonia Sotomayor is not such a person. 2 women who might have been the person liberals were looking for, Kathleen Sullivan and Pamela Karlan, didn’t make the final cut. Either of 2 of the final 4, Elena Kagan or Judge Diane Wood, might possibly have been that person. Although in the case of Wood I find it unlikely that someone who declares from the bench that because the Christian Law Society by excluding practicing homosexuals, its members do not regard them as full human beings is a very collegial person who is likely to win over centrists. Unless she also has superb acting skills.

Jeff Rosen, searching for that liberal Scalia, wrote an article that quickly became (in)famous detailing Sotomayor's inadequacy for the role of liberal saviour: Sotomayor, although an able lawyer,

was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")....

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

It’s not that Sotomayor is dumb or unqualified. She’s obviously not. It’s that she’s not Brandeis or Warren. At best, she’s an Alito, not a Roberts. She’s no more liberal than Obama’s next nominee would be, if she were defeated. And is the fact that she’s the first Hispanic nominated to the court relevant? Sure. Why did the Democrats let Scalia sail through 96-0? Well, the fact that he was the first Italian-American ever appointed to the court didn’t hurt. The Democrats gave Clarence Thomas a good roughing up, but in the end let him through.

Mind you the GOP ought to pit up a bit of a fight for a few rounds. It’s fine to bring to the public attention her statement that a Latina woman is likely to make better decisions than a white male, and the couple other Kinsleyian gaffes that she has committed. But she’s smart enough to talk herself out of trouble for those statements at the hearings. Although she’s been the front runner for the next SCOTUS opening since Obama was elected, the GOP doesn’t seem to have much on her. There’s no point in the GOP copying the Kennedys and Leahys in hysterical and irrational opposition. It didn’t help their public image any.

So let’s spar for a few rounds and then throw in the towel. It coulda been a lot worse.

Monday, May 4, 2009

Really Big Shew

There's something of a consensus that all the leading candidates to replace Justice Souter on the United States Supreme Court are essentially interchangeable, and the appointment will exchange a liberal for a liberal and not make a difference. What the smart liberals want, however, is to find someone who could become a real intellectual leader for liberalism on the court. Someone who could make arguments for judicial liberalism that hang together, someone whose opinions could make law students say "that's what a judge should be". Through a combination of bad luck and missed opportunities, liberal jurisprudence hasn't had such a person since the early 50s with Brandeis and the younger Frankfurter.

I think the left may have their candidate in Professor Kathleen Sullivan of the Stanford Constitutional Law Centre, former dean of Stanford Law School. Laurence Tribe described her as the most brilliant student he ever had. Sullivan has an uncanny ability to write about law with analytical rigour but in a way that can be easily understood — she thinks like a lawyer but writes like a human being. In public appearances she is soft-spoken, genial — and cute, which never hurts. Republicans trying to beat her up in the hearings will look bad — which is reverse sexism but why not take advantage?

Sullivan is the Bizarro Scalia, different in gender, judicial philosophy, and temperament. While Scalia's belligerence often turned off so-called moderates like O'Connor and Kennedy, Sullivan's charm might help reel in the types who don't know what they really believe.

The kicker is that Kathleen Sullivan is a lesbian. Should that stop Obama? I would say no. That might work, when the political gains and losses are computed, to the benefit of the Democrats. Some conservatives are sure to say some intemperate and inappropriate things about her sexual orientation. That will only assist Democrats in their attempt to portray the GOP as nothing more than a collection of bigots.

I don't know if Obama is willing to throw the long bomb or not. My sense is that Sullivan's biggest obstacle will be Obama's preference to go with people he knows from Harvard or Chicago. Tribe-Sullivan-Obama may not be close enuf.

She has one embarrassing negative: she failed the California bar exam the first time she took it when she moved out there. I imagine this will provide some good clean fun for Republicans but don't see it as a dealbreaker.

Further reason for Sullivan: Jeff Rosen has a story up in The New Republic suggesting that the woman on the top of most lists, Judge Sonya Sotomayor, just isn't smart enough.