Wanted: A Canadian Rehnquist

The Harper government should have an opportunity during its term to make the Supreme Court into a body where the principles of judicial restraint and sound legal reasoning have strong exponents. Its opportunity is however restricted by the complete absence in Canada of a movement comparable to the U.S. conservative judicial revolution of the last few decades. It is not Stephen Harper's fault that one may look over the entire Court of Appeal plus all law faculties in the province and find no one who dares to dissent from the current regime of legal Bolshevism that followed the enactment of the Charter of Rights. Worse, the Ontario A-G and Federal DOJ constitutional lawyers of whom I have personal knowledge are if not card-carrying members, at least committed sympathizers of the left-wing human rights industry.

What the Government needs to come up with is another William Rehnquist. Rehnquist's career prior to his nomination as a SCOTUS judge was not as a judge or legal academic, but as a lawyer in the Department of Justice. (President Nixon happened to drop by a meeting at the Department of Justice which Rehnquist had handled with great skill. He was also at that time however wearing a jacket with a flamboyantly wide lapel and a bright yellow tie, leading Nixon to refer to him thereafter as "that clown". Nixon also was unable to remember Rehnquist's name, so after two of his nominees had been defeated by the Democratic Senate, Nixon, searching for a replacement, asked, 'What about that clown Renchburg?') The extent of Rehnquist's legal conservatism was, because of his DOJ background, unknown to those passing scrutiny on him. With the paper trail he would have had as a judge or professor, he would never have got through the Senate.

In addition, Rehnquist had the courage of his convictions. Rehnquist had no problem with recurrently being on the wrong end of 8-1 decisions, earning him the title, seriously or mockingly, of "The Great Dissenter". It would be over a decade before Rehnquist would be joined on the court by anyone else with a similar commitment to judicial restraint and original meaning. And longer than that before the legal academics were to take conservative legal thought seriously. But once you have 3 or 4 exponents of any judicial approach on the court, they have no choice.

With two Ontario appointments this summer, the Government can be cautious and prudent and select a woman practitioner or government lawyer who at least is not a full-fledged fanatic. But with the other appointment. what the Prime Minister needs to do is to pull, apparently out of his hat, the name of another Rehnquist, someone to hold the fort until the lower courts can be seeded with possible future appointees and some means can be designed to give the jurisprudence of true meaning and judicial restraint a foothold in the academy. He needs to be able to find himself a facsimile of "that clown Renchburg".

So When Did You Stop Beating Your Spouse, Judge Obama -- I Mean Sotomayor?

Steve Sailer wants the GOP to go after Judge Sonia Sotomayor by hammering her on her decision denying promotion to the white firefighter plaintiffs in Ricci and her longtime aggressive support for racial preferences for Hispanics and affirmative action generally.

Sotomayor can extricate herself on Ricci quite easily by stating that she was simply applying the precedents in force at the time as she was required to do, that the majority decision in the Supreme Court chose to alter legal doctrine as they alone have the right to do, and that she herself as a 2nd circuit judge would not have had the power to alter legal doctrine that way even if she wanted to. (GOP Senators and witnesses may say otherwise but the interchanges will degenerate into an inconclusive and dull debate on the state of existing precedent before Ricci). When asked if she agrees with the majority decision in Ricci she need only repeat the formula: she cannot prejudge questions that may come for her if she is so blessed by God as to be confirmed to the position of justice of the United States Supreme Court.

She'll need to talk her way out of the (repeated) wise Latina statements. She may take the line of least resistance which is to say that she believes that a bench that is more representative of the diversity of the population will provide better justice to everyone than a bench that is not. This is not of course what she said in the Wise Latina statements but may be her first option for defusing the situation. If pressed she may retreat to the position that she was referring to discrimination cases where it may be useful to have judges who have experienced discrimination or at least seen it up close and first hand. The GOP will have to keep after her and point out that most of the times she made the comment there was no connecrion at all with discrimination cases. I suspect that Sotomayor will be able to play rope-a-dope on this one for as long as she needs to.

But Sotomayor is going to be confirmed and it doesn't particularly matter that the GOP can turn the public against her position on affirmative action. She's never going to have to run for re-confirmation. And besides, even if she could be defeated and filibustered it's not in the Republican interest to do so. Her replacement nominee would likely be a more effective advocate for liberalism and thus more dangerous. For the GOP there is a more important purpose to the hearings:

Will they forego their best opportunity to point out that Obama not the post-racial uniter of David Axelrod’s imagination, but is merely Sotomayor with a more oleaginous prose style ?

The objectionable effects of Sotomayor's legal philosophy need to be pinned where they belong: right on the collar of Barack Obama. Don't ask her what she thinks of racial preferences. Ask her what she thinks of the Obama Administration's mandated racial preferences. Don't ask her whether she agrees with the reverse discrimination imposed by "disparate effect" doctrine; ask her whether she agrees with the reverse discrimination imposed by the Obama-administration-supported disparate effect doctrine. When discussing the Wise Latina comment, pause to generously acknowledge that the statement is a fair reflection of the Obama Administration's judicial philosophy.

I expect not so much a grilling next week as a light toasting.

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.

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.