Before I get to Sotomayor, I have to scold Savage. You never knew a thing about the word cuckquean until I brought it to your attention. Credit, s’il vous plait?
I give the Sotomayor hearing yesterday a 6. The highlight:
Senator Graham won, I think. He came off as genuine and frank and funny, which explains why he’s been on so many Sunday talk shows lately. He’s not “the future of the Republican party” because he’s not what you would call polished—but since when did that scare anyone away from puffy-faced John McCain?
The zinger: “Unless you have a complete meltdown, you’re going to be confirmed.” It’s nice to hear someone cut through the bullshit. Unfortunately, no, I don’t think it was a comment on fiery Latina propensities—Senator Graham is being wry, not sarcastic; that remark wasn’t obnoxious, just good-humored. The rest of his little speech is less impressive, of course. The ranting about her speeches is just lame. If you’ve been paying attention, you know Sotomayor’s decisions are remarkably fact-intensive, technical, and narrow. She doesn’t show much indication of breaking new jurisprudential ground.
So why does Sotomayor do this kowtowing to the right-wing vision of “judicial activism”? The common law (as opposed to civil law—ew, France!) permits, even invites, the creation of new law by judges. It’s a stopgap measure, of course, resorted to only when the legislature hasn’t bothered to speak on the subject. Which happens quite frequently. And then the power of judicial review (when the Supreme Court strikes down legislative acts—think Lawrence v. Texas) is as old as Marbury v. Madison. Let’s not pretend it’s not part of our national heritage. So I was pretty disappointed by Sotomayor’s wholesale disavowal of judicial activism:
In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.
Yeah, it’s mostly in the past tense, and it’s true—appellate court judges have to be deferential, and Supreme Court Justices only have to pretend to be deferential. Sotomayor is plenty smart. So I don’t necessarily think she’ll be as picky and small-picture as she’s been as a 2nd Circuit judge. But why this charade? Absent a meltdown, as Senator Graham has acknowledged, Sotomayor will be confirmed. So she—and her Obama administration handlers—are giving up a priceless opportunity to fight the Republican “judicial activism” publicity machine. Too bad.
Hearings continue this morning at 6:30 am. Enjoy.
“Credit, s’il vous plait?”
You must be new here.
Everyone and everything on slog
exists to kiss Dan’s ass.
Make a note of it.
And practice your pucker.
Oh, Annie. I’m sorry—you know I smoke pot, right? I knew that I didn’t always know the term, but I couldn’t remember where I first heard it, or who, exactly, was responsible for my edification on this score. The oversight wasn’t intentional.
I will make amends—some suggested penance?
I must beg to differ with your claim that Sotomayor is ‘kowtowing’ by saying that judges apply the law rather than make it. Obviously a legislative body, when making a law, can’t take into account every possible circumstance in which it will apply; it is a judge’s job to determine how the law applies to a given not-entirely-foreseen set of circumstances. Although schools of thought differ, when a judge ‘makes’ law (insofar as they set a precedent for how a statute should be applied under certain conditions), it is generally agreed they should technically be doing so through the lens of only ‘interpreting’ how the legislative body worded it to apply/intended it to apply.
And what @1 said, yes, yes, yes.
Why the “kowtowing?” You said yesterday that this is political theater. However, this is the right wing’s pet issue regarding SCOTUS. She may be a lock on her nomination but that doesn’t mean she can’t screw things up for future court appointee (esp. for lower courts). If she said anything that those bozos could use to support their “judicial activism” charges, they’ll make hay out of it for decades to come. That’s why the kowtowing.
Being from South Carolina, I can say that Senator Graham is not the future of the Republican party not because he’snot polished, butbecause he only gets a 94% conservative rating and occasionally gets the wild hair up his ass to actually talk to members of the other party. He gets savaged here because of it (look him up on torture and immigration).
I suppose the ability to occasionally be rational on some issues (like torture) doesn’t make you a good Republican these days. Its a shame really.
I’ve never voted for the guy, but at least he can speak english more fluently than Strom Thurmond and doesn’t need a translator.
He’s also a deeply-closeted three-dollar bill, like most Republicans these days — but which is still a disqualifier.
Seriously, the way these hearings work, the senators are only pretending to ask questions, and Sotomayor is only pretending to answer them. You HAVE to say “the task of the judge is not to make the law”; it’s right there in the script. NOTHING that happens in this hearing, or any other of its type, bears any relation at all on how she, or anyone, will rule on the Supreme Court.
@1: you can’t have something like Slog or the Stranger without a lot of talent and team effort as esteemed commentor 4 would be the first to admit if he wasn’t drunk, stoned and probably still on vacation. There’s undoubtedly been more than a few human sacrifices over the years too.
Thank-you for the hearing updates, Annie.
Dear extremely stupid person @1: Annie Wagner is not new here.
Thank you so much for this, Annie and the Stranger.
I wanted to watch yesterday, and tried, but it is so insufferable to listen to speeches by Senators.
THANK YOU THANK YOU.
I’m glad to see your name here again, and way to go for going to law school.
@3, @5 & @7 re: kowtowing
i agree that it is a script, and there is no other acceptable answer. on the other hand, i don’t consider “interpreting” how the law applies typical judicial activism. neither do i consider making law where the legislature failed to be specific judicial activism either. so, i think she’s following a script, being honest, and not kowtowing all at once!
i consider judicial activism as interpreting the law in a way that seems counter to the legislative intent, or even finding a vagueness (where there is ground for an interpretation) but choosing a standard that seems opposed to the legislative intent. but that’s just me. the question is, does sotomayor have a history of such decisions (more so than other judges)?
@11, not really. The only question that matters is, does Obama have the votes to get her confirmed? Her judicial philosophy may play a very small role in that question, but the answer doesn’t really matter.
@11: The thing to remember is that the Supreme Court accepts a truly tiny fraction of would-be appeals every year. Every single one of those cases is difficult because the precedents do not obviously compel a single result. While a Court of Appeals judge may “apply the law” in a relatively straightforward manner most of the time, the Supreme Court doesn’t have that luxury. My feeling is that a question about what has been inaccurately branded “judicial activism” would be important for an appeals court confirmation hearing, but it doesn’t reveal much about what kind of Supreme Court Justice Sonia Sotomayor will be.
How Sonia Sotomayor feels about the role of legislative intent is another issue, and a very important one.
Annie, it’s an important issue from the perspective of how the court operates, but it’s not important to her confirmation, which is dependent 100% on backroom maneuvering of the votes and 0% on what she or anyone else says at the hearings.
@ Annie Wagner,
That’s a very good point about about Team Obama’s inability to refute Refreaklican Party propaganda.
It’s fascinating because on the campaign trail they had some iron-clad message discipline, and that’s just gone to pieces since they’ve been governing. New people took over after the transition, I suppose.
Sweet FSM, how much I miss Candidate Obama.
@8
Annie and all of us could learn a lot about ‘Dan Ass Kissing’ from this ernest young lady…
9 thanks, cowboy
I was being sarcastic.
of course, when you have to explain it to the drooling retards it really interrupts the flow of witty banter…
Thank you.