Sunday, May 31, 2009

Politics and substance in the Sotomayor nomination

by

Frank Kaufmann

May 31, 2009

We are moving toward a just society.

Not because we are seeing things in the moment grow increasingly just, but because the instruments necessary for justice are gradually falling into place.

Injustice is possible under conditions of imbalance of power, and under conditions of shadow and secrecy.

The communications revolution (spawned by the popular use of internet technology) of the past 10 - 15 years is eroding both these necessary conditions for injustice.

Two things remain missing to complete more sound and rapid progress. These are: 1. Some form of religion in our midst that is void of petty conflict and parochialism, and 2. the evolution from knowing to doing among the increasingly empowered "common" people.

A wholesome and orderly society requires harmony and collaboration among its religious institutions, its political institutions, and its economic institutions. These core pillars are supported by the academy, journalism, and the arts and entertainment.

The population at large is becoming increasingly knowledgeable and expert about society's core pillars little by little. This increasingly widespread knowing will make for a better society, provided a helpful and reliable spiritual element can arise, and if increased knowing can be translated into increased doing, informed action.

Our latest growth of knowledge has come in the area of economics, even at the complex levels of banking, finance, and international, economic relations. This is because, rampant greed collapsed the towers of the economy on each of us personally. We have learned and are learning about economics and finance in the effort to survive. In seemingly no time at all, the same guy beside me at the bar who used to make me feel like an idiot for not knowing what quarter Gretsky's 700th goal was scored, now makes me feel like an idiot for not getting exactly how accrual basis accounting doesn't really work for equity REITs. How and when did that happen?

On Tuesday, President Obama nominated Sonia Sotomayor to replace David Souter on the Supreme Court.

Due the the poverty and superficiality of most news media (especially cable news networks), it will probably be sometime before idiot-Frank's bar friend will have much to say about libertarian, constructionist, or originalist judical philosophies, but he will know that the Sotomayor nomination makes Republicans crazy.

Why though? What even allowed Judge Sotomayor to be positioned to receive Obama's nomination? Answer? Her 1991 appointment to U.S. District Court for the Southern District of New York by George H.W. Bush.

Bush? Then surely she must be a moderate since a major stepping stone in her rise to this moment came at the hands of a Republican president?

In fact no. That lower federal position was approved by GHW Bush as part of the simple horse-trading on which no major political figure ever spends political capital. It was Moynihan's turn to pick, D'Amato's turn to let it go, and the president's turn to leave cease-fires in place. (See Byron York, Washington Examiner, May 26). So the Bush notch in the belt is greatly helpful for the politics of it all (from President's and the Democrat's point of view), but it is unrelated to the substance of the issues at hand, and to why there is a fight over Sotomayor at all.

Wendy Long of The National Review (May 29) helps us understand Republican opposition to Sotomayor. Long identifies three bright lines in Sotomayor's record for anyone interested in moving beyond politics to substance, people more concerned with issues than with the titilating gotcha rants that fuel cable news ratings. These substantial moments are a 1996 law review article said to support "Legal Realism," a 2002 law review article dealing with race, gender, and ethnicity, and a 2005 appearance at Duke Law School stating that appellate courts make policy.

The sum of Long's notes helps us grasp the fact that the substance of what is at stake with this nomination has to do with what is called "judicial restraint," (i.e., preference for the impartial application of neutral principles) on the part of conservatives, as opposed to what conservatives often call "judicial activism," the label they give to judicial-philosophical impulses of liberals or progressives.

It is time that these categories, like so many others have in recent times, yield to a more subtle, youthful, creative, and energetic bent of mind. The entrenched arguments that stand fast in the structures of battle and conquest fairly well have been perfected. A thinking person should be capable of seeing the wisdom in judicial restraint, every bit as much finding the same degree of wisdom and promise in judicial activism. The very fact that both positions are held passionately all but establish that wisdom and value lies at least in part in both impulses.

It is unlikely that a higher and more profound judicial philosophy with the power to substantially advance the ideal of justice will arise in the already fiery and petty habit of battle that instantly ignited following Sotomayor's nomination.

But surely it is not too much to hope that we can do with questions of justice what we just so quickly did with economics. We have begun to envision more wholesome and more balanced possibilities embracing profit and social care in the way forward. Is it not possible for a better dialogue to emerge in the arena of judicial philosophies? One that allows the emergence of softer, more constructive, less embattled thought, thinking that steps away from old battle lines and is drawn in humility toward the dream and the light of a just society.

Frank Kaufmann is the director of the Inter Religious Federation for World Peace
The opinions here are his own

14 comments:

Edward said...

Dear Frank,
Thank you for inviting me to comment. I'm kinda out of the loop concerning mass media lately. I've asked a few people about this when; as a fan of President Obama on Facebook, I was asked to support the nomination. With inconclusive results and now with your observations in hand; I turned to "wiki" it. My impression is that she is diligent in her service to the Rule of Law and, as far as I can tell, a centrist. She is a true fan of baseball, our national sport and I find her to be breath of fresh air. She is trusted and admired in academia as well as a public judiciary figure. All idealogue ranting aside; I feel she will make valuable and balanced contributions to the growth of our nation and give responsible and fair decisions in the Supreme Court. I Like her.
Thank you,
Sincerely,
Lee Titus

Michael Cromartie said...

This confounds me: "A thinking person should be capable of seeing the wisdom in judicial restraint, every bit as much as finding the same degree of wisdom and promise in judicial activism . . . wisdom and value lies at least in part in both impulses." No they don't. Truth is not somewhere in the middle of the Ricci case (see here http://tinyurl.com/qvfdxv).

I agree with your critique of the media and your call for a "softer, less embattled thought." But some of these issues are very serious . . . and hence the embattled tone. She will get the nomination. But her vote, and her reasoning, in the Ricci case, is deeply disturbing.

I do not like "fiery and petty habits of battle." (and hence the reason why I rarely what cable television political "dialogue" shows). But some of these legal issues are very serious and most of the time there is simply no middle ground. And so we have to vote.

I suspect this will be another intense battle---and out of the debate, clear lines will be drawn. And should be.

All the best to you and yours,

Michael Cromartie

Bill Lay said...

Frank -

This says it nicely:

A thinking person should be capable of seeing the wisdom in judicial restraint, every bit as much finding the same degree of wisdom and promise in judicial activism. The very fact that both positions are held passionately all but establish that wisdom and value lies at least in part in both impulses."

Bill Lay
(Attorney at Law)

Dr. Donna said...

Frank,

I agree with your conclusions.
The New Haven case shows her lack of universal "empathy" and
will probably be reversed by the Supreme Court. That a number of
her rulings have been reversed by a higher court speaks for her
questionable judgement.

We do not need reverse discriminatory policies from a Supreme Court
judge....
Dr.Donna

Frank Kaufmann said...
This comment has been removed by the author.
M. Darrol Bryant said...

Nice to see/read your voice of "sweet reason..." The middle way is not somewhere in the middle but beyond the oppositions to a new land of reconciliation and construction...

Darrol

Al said...

Frank,
Obama's disingenuousness is again evident in his comments on his nomination of Sotomayor. He complains that no one should really question his nominee, when in the Senate he said and did the opposite, voting against every Bush nominee for any court, including Hispanics and African-Americans. With such hypocrisy, one can't take the man seriously. This is in keeping with history where no Democratic president in the last 50 years has nominated a conservative or moderate justice for the court despite the rhetoric (Republicans have nominated both, Democrats have nominated only liberals). So it is evident if one sees reality that there is no moderation or bipartisanship when it comes to judicial nominees or most anything else from liberal politicians. Yet they cry for bipartisanship, often equating opposition with bigotry and racism. The tactic should be obvious by now. Sotomayor fits the same mold. No one should be fooled she will be anything but a reliable liberal on the bench.

Mirek said...

Dear Frank,

I am basically in-line with your reasoning in RE: world needs more empathy and, perhaps, a whole lot of a new philosophy. One exception is the Law. As I was raised in a society where the only criterion of the Law was the, so called, "class justice" - and, as you might remember, Karl Marx had a great empathy for the working class - in the Sotomayor issue, I am, and will ever be, in total support of Charles Krauthammer's article "Criticize, then confirm", National Post, Saturday, May 30,2009, p.A27. A short excerpt:

"...empathy is a virtue to be exercised in private life - through charity, respect and loving kindness - and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets build for the poor and disadvantages.......But all that stops at the court house door....Obama and Sotomayor draw on the "richness of her experience" and concern for judicial result to favour one American story, one disadvantaged background, over another. The refutation lies in the very oath Sotomayor must take when she ascends to the Supreme Court: ' I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich...So help me God.' ....When the hearing begin, Republicans should call Frank Ricci as their first witness..."

Yours ever,

Mirek

Just John said...

Frank, your passionate piece is articulate to the point of poetic. And while your denunciation of the media is, in fact, justified, the harmonious overtones given to the key issue concerning the fitness of Ms Sotomayor to serve as a Supreme Court Justice, suggest an arena of compromise, where compromise is the most unacceptable.

Your statement which others may praise, “A thinking person should be capable of seeing the wisdom in judicial restraint, every bit as much finding the same degree of wisdom and promise in judicial activism. The very fact that both positions are held passionately all but establish that wisdom and value lies at least in part in both impulses,” is itself Ms Sotomayor’s chief opposition, because the only way to see her as fit would be to embrace the philosophical view of that statement.

Unfortunately for Ms Sotomayor, “judicial activism” is innately contradictory to our established form of government. Judicial activism leads directly to one of her own claims – establishing policy in the courts. The Judicial branch of our government was never intended to make policy, or even modify policy. We have a representative form of government in order that our representatives in the Legislature (Congress) make policy. The Executive branch is to implement the policy of the Legislature. The Judiciary was designed to be as politically independent as possible in order that politics not enter the arena of judgement.

The Judiciary is to determine whether a law has been broken – not change or adjust its meaning. At the highest level, the Supreme Court, the Judiciary is to determine whether a law is “Constitutional”, not whether it seems appropriate based on an individual’s personal experiences, ethnicity, gender or background. The Constitution with its amendments needs to be the only litmus test.

It is precisely here where Ms Sotomayor’s credentials break down. The sheer number of her decisions that have been overturned by higher courts is a glaring indicator that her decisions are colored by herself rather than the law. While she may make an appealing Defense Attorney, she is hardly qualified to sit on the highest court in the land.

‘If we make compromise with the law, then we have no law.’

John E. Byrum

Edward said...

Dear Frank,
My wife, being a "minority" of both color and gender, points out cultural differences in certain significant respects. Literacy and aggressive ambition are not necessarily of paramount importance in certain circles and indeed are not necessarily crucial to promoting healthy family relationships reflected in healthy cultural development. I support the nomination precisely for the conversations it brings to the table that would otherwise perhaps lie dormant below the surface of the body politic. My wife observes; they should have promoted Mr Ricci in the first place based on qualifications. I would add; perhaps, that deeper encouragements and incentives for the minority department members to compete might be provided in developing promotion cycles. She gave some finer details about certain attitudes concerning reading in general that play themselves out culturally. As I said before; I look forward to new and interesting elements emerging in all of our conversations as voices are acknowledged, heard and given the opportunity to grow as they exercise their responsible authority in the public forum. Circulation of the water brings fresh nutrients and new life.
Thank you,
Sincerely,
Lee

Greg Davi said...

Frank, you have certainly stirred the pot (once again) bringing the ideologues out of the woodwork. A great an inspired article! It should be repeated in the Tomes of Legitimacy throughout Middle Earth.



Need I remind your readers across the globe that we are living in the 21st century? A reality which calls for New Thinking and Imagination of What’s Possible. Dare we think of "loving our enemy"?

Thanks for your insights.


Greg Davi

Bill Brunhoffer said...

Frank,

The nomination of Sotomayor, is not about who nominated her to the bench in the first place nor only about activism and restraint. It is also about judicial temperment and about having an excellent grasp of constitutional issues. In these latter two catagories, Sotomayor gets very mixed and problematic reviews.

On the record, she has been found to be pompous, overbearing, rude, domineering and provacative in formal hearings to the dismay of fellow jurists and litigants. As for her judicial mind and being equipped with a strong grasp of the constitution and constitutional issues, she is rated as average to mediocre. While David Broder cites some unknown stats to promote her being fairly mainstream in her judgments, and recommends her inspite of her "wise Latino woman" and other, what he concludes are insignificant mistatements, other analysts have stats supporting that 60% or more of her decisions have been overturned on review.

In short, she must be viewed on deeper and more substantive criteria than the so-called activist and restraint tags. And while the President has apologized for her, "wise Latino woman" public statement, she has not - nor can this, essentially racist and sexist statement, and her other "justists make policy" jokes, be merely excused.

Words have weight and we dismiss those of others in an effort to square seeming opposites, at our and our nation's peril, especially when it comes to the appointment of Supreme Court justices.

Regards, Bill Brunhofer

Bill Brunhoffer said...

Frank,

The nomination of Sotomayor, is not about who nominated her to the bench in the first place nor only about activism and restraint. It is also about judicial temperment and about having an excellent grasp of constitutional issues. In these latter two catagories, Sotomayor gets very mixed and problematic reviews.

On the record, she has been found to be pompous, overbearing, rude, domineering and provacative in formal hearings to the dismay of fellow jurists and litigants. As for her judicial mind and being equipped with a strong grasp of the constitution and constitutional issues, she is rated as average to mediocre. While David Broder cites some unknown stats to promote her being fairly mainstream in her judgments, and recommends her inspite of her "wise Latino woman" and other, what he concludes are insignificant mistatements, other analysts have stats supporting that 60% or more of her decisions have been overturned on review.

In short, she must be viewed on deeper and more substantive criteria than the so-called activist and restraint tags. And while the President has apologized for her, "wise Latino woman" public statement, she has not - nor can this, essentially racist and sexist statement, and her other "justists make policy" jokes, be merely excused.

Words have weight and we dismiss those of others in an effort to square seeming opposites, at our and our nation's peril, especially when it comes to the appointment of Supreme Court justices.

Regards, Bill Brunhofer

Gunnard said...

Ms. Sotomayor's nomination seems like simple quota-fulfilling, nothing more. This lady is truly the "best" available jurist in America today? I find myself wondering about that.

Of course, we all have come to realize that these Supreme Court appointments are political: we've got to appease the largest most vocal demographic groups lest someone go criminal on society.

OK, fine, I can see that. But is Sotomayor REALLY the best Hispanic woman available?? I really do not know. Much has been written about her legal life, her education, her work as a jurist on lower levels. But a person is more than a "worker"; a person begins from a family and will always be a part of a family.

I have not been able to find anything on her own personal life. Is she married? Have a family? Family gives a balanced holistic perspective in matters as important as making decisions in a court room, particularly at the level of the highest court in the land.