Hispanics Resist the Lure of Identity Politics

As soon as Obama announced his nomination of Judge Sonia Sotomayor, who many believe is set to become the first Hispanic to sit on the Supreme Court, Democrats were quick to play the race card. Senator Chuck Schumer warned Republican senators that if they vote against her confirmation, they will do so "at their own peril," implying that a vote against her would lead to a backlash among Hispanic voters. More recently, Senate Majority Leader Harry Reid echoed his colleague's warning:

"I just think that their voting against this good woman is going to treat them about the same way that they got treated as a result of their votes on immigration," Sen. Harry Reid, D-Nev., the majority leader, said of Republicans. He was referring to the electoral losses — including among Hispanic voters, a fast-growing segment of the electorate — the GOP suffered after its spirited opposition to measures that would have given some illegal immigrants a chance to gain legal status.

See the complete story here.

Oddly enough, at least from the point of view who rise to power largely by dividing Americans into racial and class-based categories, Hispanics themselves have defied the simplistic assumption that they will support Sotomayor solely because of her ethnicity. A recent Zogby/O'Leary poll found that Hispanics are roughly divided on the question of her confirmation, with 47% in favor and 43% opposed. Moreover, 60% of Hispanics believe that a person who does not believe the Second Amendment guarantees a fundamental right to bear arms should not sit on the high court.

Could it be that members of a minority group can think for themselves and are capable of putting principle above petty identity politics?! Say it isn't so!

Some Democrats Hesitant About Voting in Favor of Sotomayor

It appears that the National Rifle Association's decision to score senators on their vote to confirm Judge Sonia Sotomayor is causing some red state Democrats to think twice before vowing to support her nomination.

The article specifically mentions Senators Mark Begich (D-AK) and Ben Nelson (D-NE), each of whom have yet to announce how they will vote on the matter. Begich admits he is leaning in her favor but remains undecided, while Nelson has expressed concern that she might become an activist justice.

The author of the article, Ian Millhiser, also erroneously asserts that Sotomayor's ruling in the case of Maloney v. Cuomo was merely following Supreme Court precedent. Robert Alt at the National Review knocked this argument down weeks ago, noting that the precedent Sotomayor supporters refer to, the 1886 case of Presser v. Illinois, only prohibited the incorporation of the Second Amendment against state and local laws directly and through the Privileges and Immunities Clause of the Fourteenth Amendment. It did not, however, address the Due Process Clause of that Amendment, which has been used to incorporate most of the Bill of Rights since that time. Check out Mr. Alt's brilliant post for a more thorough explanation.

In short, the Second Circuit panel that included Sotomayor took an activist stance when it declared the Second Amendment's guarantee of the right to bear arms does not constitute a fundamental right.

The hesitancy on the part of some Democrats comes much to the chagrin of liberal lawmakers and their base (as demonstrated by the furious comments listed below the article), who continue to insist that the NRA scoring will not sway Democrats to oppose Sotomayor in next week's floor vote. The fact that they are so outraged certainly seems odd when one takes into account how certain they are that she will ultimately be confirmed. However, it does show they recognize that even one Democratic vote against Sotomayor will lend credence to Republican criticism, not to mention signal to the President that he cannot simply assume that the Senate will confirm anyone he chooses for future Supreme Court vacancies.

Elections Have Consequences

This is often used to require the minority to vote Yes on a nominee that they would otherwise oppose.  But these Senators are also elected, and they owe it to their constituents to vote in line with their beliefs.  This second "elections have consequences" fact is seldom metioned.  

Stuart Taylor on Sotomayor, Gates And Race

Stuart Taylor has a well written column on the failings of Sotomayor and Gates in regards to race.  The part about Sotomayor is particularly insightful.  

Contrast Douglas's vision with the quota mentality displayed by Sotomayor's complaint in 2001, in one of her "wise Latina" speeches, that "we [Latinos] have only 10 out of 147 active [federal] Circuit Court judges and 30 out of 587 active District Court judges. Those numbers are grossly below our proportion of the population[emphasis in original text]."

Sotomayor ignored the fact that the talent pool for judicial appointments is not the general population but rather the population of lawyers with the experience and accomplishment to qualify. By that measure, Latinos were overrepresented in the federal judiciary, as Ed Whelan, head of the Ethics and Public Policy Center, has documented. "According to the ABA," he wrote, "in 2000 the percentage of lawyers who were 'Hispanic' was only 3.4 percent [and] the very numbers that Sotomayor complained about equate to 6.8 percent of federal Appellate judges ... and 5.1 percent of District judges." ...

These preferences are not justified by what Sotomayor called "cultural biases built into testing." To the contrary, as a predictive matter the SAT is biased in favor of blacks and Hispanics; studies show that on average they do worse in college than whites with the same SAT scores.

Pushing for more integration of our elite institutions is a worthy goal. But, as studies show, the racial preferences used by selective colleges today are so great as to bring in academically ill-prepared students, clustering most blacks in the bottom 10th of their classes (in GPA) and most Hispanics in the bottom quarter.

Complete Deference Means Self-Disarmament

The Washington Post's legal blog has a post up that comments on Sen. Alexander's (R-Tenn) decision to vote in favor of confirming Sotomayor.

"Even though Judge Sotomayor's political and judicial philosophy may be different than mine, especially regarding Second Amendments rights," Alexander said on the Senate floor, "I will vote to confirm her because she is well qualified by experience, temperament, character and intellect to serve as an Associate Justice of the United States Supreme Court."

In his speech, Alexander criticized Obama for opposing President George W. Bush's two Supreme Court nominees, and he framed his own decision as a move "to help to return the Senate to the practice only recently lost of inquiring diligently into qualifications of a nominee and then accepting that elections have consequences, one of which is to confer upon the president the constitutional right to nominate justices of the Supreme Court of the United States." 

I understand Sen. Alexander's frustration with the process, but I find it hard to beleive that continuing to show complete deferenece by voting Yes on Democratic nominees, especially those with as troubling qualities as Sotomayor, is going to change things.  The Democrats are the ones that brought us to this precipice via Bork, Thomas, and Alito.  For the GOP to singlehandedly disarm in the name of deference or some other quality the media loves to crow about is politically stupid.  The harsh treatment of Alito and/or the racialist treatment of Miguel Estrada did nothing to Democratic electorial success.  NOTHING.  To think the Dems won't result to the same tactics the next time the pendulum of power swings the GOP's way is naive.  Then, like now, the media will tut-tut the minority (although it is likely to be much more aggressive when the GOP is in the minority) but the voters will likely have moved on once the vote is made.  That is until that nominee coins their first opinion.  

On a side note, it is not that Sotomayor's "political and judicial philosophy may be different than [his and Sen. Graham's]."  It is that her political and julicial philosophies are wrong and way outside the mainstream of American values, which is something the Dems can't say about GOP nominees.

Harry Reid criticizes GOP senators

As Christina's already mentioned, the LA Times applauded those senators who voted "yes" on Sotomayor, while trashing the senators who voted "no", claiming they engaged in "tit-for-tat pettiness" and succumbed to party politics. Nevermind that the democratic senators also all voted along party lines- a fact that seems to have escaped the LA Times. What's truly infuriating is that the LA Times is criticizing Republican senators for basing their votes on petty things such as party politics, and not substantial issues such as Sotomayor's actual record and judicial philosophy. At the same time, the LA Times praises senators who vote "yes" on Sotomayor, even if they are doing so based on partisan politics.

Dem. Senator Harry Reid is a perfect example of this double standard. He has been very open about his support for Sotomayor, something the LA Times would applaud him for. This is the same Harry Reid who recently warned that Republicans risk losing votes by opposing Sotomayor (one would think that this sort of party politics-based argument would be deemed petty as well). This is the same Harry Reid who publicly stated that he has never read a single one of Sotomayor's opinions, and if he was lucky, he wouldn't have to. From this we can assume that the Senator knows little to nothing about her actual record. Therefore, he must be doing one of the following:

a. Supporting her because he doesn't want to lose votes.
b. Supporting her because she is a liberal.
c. Blindly supporting her.

And yet, he is the one dishing out criticism. I guess the LA Times would at least give him points for his "intellectual honesty" -admitting that he has no plans to learn anything about the woman he is about to place on the Supreme Court for life.

Playing Politics with the Supreme Court

A number of Democrats and political pundits are praising Senator Lindsey Graham for putting principles before politics by voting in favor of Judge Sonia Sotomayor's nomination to the Supreme Court while scolding the rest of the Republicans on the Judiciary Committee for allowing political considerations to sway their vote. An LA Times editorial called Senator Graham's decision "a profile in statesmanship, if not courage."

If only it were that simple.

Unfortunately, the mere fact that a person votes a certain way says little about the motivation behind the vote. Senator Graham obviously believes that senators should show complete deference to a president in voting for a Supreme Court nominee, as long as the nominee meets the necessary qualifications for the position, and thus his vote in favor of Sotomayor adheres to principle. However, the fact that Graham voted one way based on principle doesn't necessarily mean his Republican colleagues allowed political pressures to trump principles in casting their vote. To draw this conclusion, Sotomayor supporters must assume that all Republicans agree that Graham's deference standard should override any other considerations. Clearly this is not the case.

Democrats have been quick to spin the situation by flat out dismissing Republican senators' appeal to judicial philosophy and other matters when voting against Sotomayor's nomination. In the LA Times editorial quoted above, the author had this to say:

However much they cloaked their opposition in high-minded arguments about judicial philosophy and Sotomayor's supposedly radical views, the other six Republicans on the 19-member committee were voting their party affiliation and political philosophy. The subtext was as obvious as it was crude: Republican and conservative good, Democrat and liberal bad.

This cynical interpretation of the vote disregards the very real possibility that these senator's had legitimate concerns about Sotomayor without offering a shred of evidence to justify doing so. In fact, based on the electoral threat many of these men face from the potential Hispanic backlash, it appears that the Republicans voted against Sotomayor in spite of the political consequences they may suffer. Even Senate Majority Leader Harry Reid recognizes the risk a vote in opposition to the first Hispanic nominee entails:

"I just think that their voting against this good woman is going to treat them about the same way that they got treated as a result of their votes on immigration," Sen. Harry Reid, D-Nev., the majority leader, said of Republicans. He was referring to the electoral losses — including among Hispanic voters, a fast-growing segment of the electorate — the GOP suffered after its spirited opposition to measures that would have given some illegal immigrants a chance to gain legal status.

Based on this observation, it is difficult to conclude that politics was on the forefront of the minds of Republicans on the Committee when they cast their vote. If they had been worried about losing elections, they would more likely have caved under the threat of alienating a key segment of the electorate, as Reid suggests, and endorsed Sotomayor's nomination. Instead, Republican Senators chose to promote principle - specifically their opposition to judicial activism - over identity politics.

Sotomayor: GOP Puts Principle Above Identity Politics

CFJ Executive Director Curt Levey on today’s Judiciary Committee vote on Sonia Sotomayor:

Republican senators on the Judiciary Committee deserve praise for putting principle above identity politics today in voting against Sonia Sotomayor. Recall Sen. Schumer’s warning, on the day Sotomayor was nominated, that Republicans opposing her would do so at their "own peril.” Most observers on the left and right predicted that GOP senators, afraid of alienating Hispanic voters, would mount little opposition to Sotomayor’s confirmation. The naysayers pointed to the fact that only three Republicans voted against confirmation the last time a controversial Democratic Supreme Court nominee, Justice Ginsburg, came before the Senate.

However, the predictions that Republicans would “roll over” were proven wrong at the hearings for Judge Sotomayor. Republicans persistently asked tough questions about her commitment to the Second Amendment, property rights, equal opportunity, and about the many speeches that call into question her belief in judicial impartiality and a colorblind justice system.

The naysayers were proven wrong again by today’s Judiciary Committee vote, in which six of seven Republican members voted no. Many analysts predicted that Sens. Cornyn and Kyl would vote for Sotomayor simply because they come from states with large Hispanic populations. But both senators showed more courage than that.

Others said that Sens. Grassley and Hatch would vote for Sotomayor because they have a long record of giving great deference to the judicial nominees of Democratic presidents. But Grassley and Hatch know that deference doesn’t mean blindness, and they simply could not overlook Sotomayor’s disturbing statements celebrating judicial activism and the role of race in judging. Sotomayor’s assertion that Latina women will generally make better judicial decisions, perhaps because of “inherent physiological or cultural differences” and “basic differences in logic and reasoning", than white males was particularly hard for Committee Republicans to swallow.

Sens. Sessions and Coburn deserve praise as well. If their votes were less in doubt, it’s only because they have so consistently spoken out against the activist judicial philosophy that Sotomayor espoused until her “confirmation conversion” earlier this month.

Obama's 90% Lie on Assault Wepons

One line of reasoning the Dems use to increase gun restrictions is that 90% of the guns used in Mexican dug cartel violence come from legal gun sellers in America.  As Bob Owens reports, that is only true if by 90% they really mean 8%.

"The myth that legal guns sales in the United States are responsible for Mexican drug cartel violence took another serious blow last week when an ATF official testified in Congress that only eight percent of weapons recovered in Mexico came through licensed U.S. gun dealers. ...

Both Mexican President Felipe Calderón and American President Barack Obama have tried to claim that 90 percent of the firearms used by Mexican drug cartels originate in the United States. These claims have been echoed by Secretary of State Hillary Clinton, Attorney General Eric Holder and his assistants, liberal members of both houses of Congress, and a reliably anti-gun media. They hoped to use the shocking statistic to lay the groundwork for a reinstatement of the 1994 “assault weapons” ban that expired in 2004. ...

Eight percent is a far cry from the 90 percent that the administration had been wanting to claim, and considering that there are more than 6,600 licensed dealers in the border region, it means (statistically speaking) just over one gun per licensed dealer has found it’s way across the border."

My guess is the Obama administration won't let the facts get in the way of their attempt to severely narrow individual rights under the 2nd Amendment.

Victory for Conservative Jurisprudence?

President Barack Obama:

The legal process alone will not lead you to a rule of decision...the critical ingredient is supplied by what is in the judge's heart.

Judge Sonia Sotomayor:

[I] wouldn't approach the issue of judging in the way the president does.

The blatant contradiction of these two statements was evident to anyone watching the Sotomayor hearings in the past week, and further, to anyone who has studied jurisprudence in the past two decades. While the liberals tout their "living" constitution (highlighted by justices such as Brennan, Ginsburg, and Breyer), aka the taking of a solid foundational document and turning it into play-dough to be molded and shaped according to subjective beliefs, the conservatives have always countered with legal positivism and strict construction.

In a nutshell, these conservative theories basically require following the law as it stands, and using commonly held beliefs and definitions pertaining to constitutional law when interpreting the constitution. However, the hearings did not focus on how alive the constitution was (to Sotomayor) or how big of a role subjectivity played (at least from a greater, overall outlook), but rather, Sotomayor pulled a 180, stating that she has always followed the rule of law and will always do so. She did this at the complete support of the democrats on the committee, who stated the same exact thing: the rule of law dominates in the eyes of the Senate and the American people.

The NRA Will Score Sotomayor Vote

In a letter issued to Senators Harry Reid and Mitch McConnell, the National Rifle Association has followed up its concerns about Judge Sonia Sotomayor's hostile record on the Second Amendment by including her confirmation vote in its highly influential evaluations of legislative candidates. What this means is that the NRA, which keeps track of each senator and congressman's votes on gun-related legislation and "grade" them according to their record of support for gun rights, will incorporate how a senator votes on Sotomayor's nomination into its overall ratings system. Thus, a vote in favor of her confirmation will cause the senator's score to drop.

As has been mentioned numerous times (including here and here), the Second Amendment issue is one that has the potential to persuade Democrats from red and moderate states to vote against Sotomayor. I explained why this is the case in a previous post:

No red or purple state Democrat can afford to attract the fury of gun rights proponents and still manage to win reelection, and don’t expect any of them to sacrifice their jobs for a vote on a Supreme Court nominee.

The effect that an NRA-scored vote can have on these Democratic senators was vividly demonstrated just yesterday, as Robert Alt points out, during the vote on Senator Thune's concealed-carry amendment. Although the amendment failed to gain the 60 votes necessary for passage, 20 red state Democrats joined the 38 Republicans who voted in favor of it. Mr. Alt has compiled a list of these Senators, which I have reproduced here:

Baucus (D-MT)
Bayh (D-IN)
Begich (D-AK)
Bennet (D-CO)
Casey (D-PA)
Conrad (D-ND)
Dorgan (D-ND)
Feingold (D-WI)
Hagan (D-NC)
Johnson (D-SD)
Landrieu (D-LA)
Lincoln (D-AR)
Nelson (D-NE)
Pryor (D-AR)
Reid (D-NV)
Tester (D-MT)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Webb (D-VA)

Initially, the NRA was hesitant to enter the fray over court nominees because of its successful record in the legislative arena. Yet now that the NRA has announced its intentions to score the Sotomayor vote, a number of Democrats in the Senate, including Harry Reid, will find themselves in the unenviable position of having to decide whether to risk losing reelection or voting against Obama's Supreme Court nominee.

Sotomayor, Abortion Funding, & the Thune Amendment

Anyone surprised by this week’s legislative developments – either by yesterday’s largely party-line defeat of Sen. Thune’s amendment granting concealed carry permit holders reciprocity in concealed carry states, or by Congressional Democrats’ and the President’s commitment to include mandated insurance coverage and taxpayer funding for abortion in health care reform – has not been following the nomination of Sonia Sotomayor very closely. The President’s nomination of and Democratic senators’ nearly unanimous embrace of Judge Sotomayor should have told Americans all they need to know about where Democrats stand on gun rights and taxpayer funding of abortion.

It was widely expected that the President would choose a very liberal jurist to replace Justice Souter on the Supreme Court. But Obama went out of his way to nominate the federal judge with, arguably, the most negative Second Amendment record in the nation – so negative, in fact, that the NRA took the historic steps of opposing Sotomayor and then, just this morning, deciding to score her confirmation vote. Sen. Thune summarizes Sotomayor’s record of hostility to gun rights:

“Judge Sotomayor has consistently advanced a narrow view of the Second Amendment, providing little reasoning or explanation for her decisions, and twice has ruled that the Second Amendment is not a ‘fundamental right’ [and thus doesn’t apply] to state and local governments.”

Last week, during the Sotomayor hearings, Democrats on the Senate Judiciary Committee went out of their way to defend her narrow view of the Second Amendment. Witness Sheldon Whitehouse’s and Dianne Feinstein’s derisive descriptions of the Supreme Court’s 2008 Heller decision upholding individuals’ right to keep and bear arms. During the hearings, Feinstein mischaracterized the decision as “a case overruling 70 years of precedent,” while Whitehouse sarcastically described Heller as “discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.”

Thus, it should come as no surprise that Senate Democrats showed the same hostility yesterday to Sen. Thune’s gun rights amendment.

With regard to abortion, Judge Sotomayor’s nomination provided similar warning. During Sotomayor’s twelve years on the board of the Puerto Rican Legal Defense & Education Fund (PRLDEF), the organization took radical legal positions on abortion, including equating restrictions on abortion with the Supreme Court’s notorious Dred Scott decision, which reinforced the “property” rights of slave owners. Most telling for this week’s health care debate, PRLDEF attacked restrictions on federal funding of abortion as “brutal” and “condemn[ing] thousands of poor women and their children to an inescapable cycle of poverty, disease and dependency.”

Democratic senators questioning Judge Sotomayor last week were not the least bit troubled by these radical views on abortion and Sotomayor’s connection to them. Instead, they tried to pretend that her role in PRLDEF had been minimal. But the New York Times found otherwise:

“The [PRLDEF] board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.”

President Obama was similarly untroubled. Many commentators had predicted that Obama would moderate his stance on abortion as President. Instead, he chose a Supreme Court nominee who not only supports abortion rights, but went the extra mile by signing off on the argument that it is unconscionable to deny taxpayer funding for abortion. No wonder Obama and Congressional Democrats can’t understand why so many Americans – including many supporters of Roe v. Wade – are balking at having to foot the bill for abortions.

Tracking the Vote

The National Journal's Ninth Justice is tracking the votes following the Sotomayor hearings.

GOP Senators Mull Sotomayor Vote

Politico has the story.

"Several Republicans on the Senate Judiciary Committee are struggling with a sticky political dilemma over SupremeCourtnominee Sonia Sotomayor: Do they vote “no,” please the conservative base and send a message that liberal justices will be opposed at every turn?

Or do they vote “yes” and dampen Democratic attacks over their opposition to a nominee who will almost certainly become the first Latina Supreme Court justice? ... 

Conservative activists say a strong “no” vote by Judiciary Republicans would tell President Barack Obama that he can’t choose a more liberal justice if he gets another chance — as one Democratic senator told POLITICO he should do. A united opposition would also allow the GOP to argue that there is a clear distinction between the two parties’ approaches to judging and hot-button social issues like abortion and gun rights."

I understand the dilemma that many of these Senators feel that they are under.  That being said, if they choose to vote No there are many ways to diffuse any potential negatives.  For one, then Senator Obama's votes on SCOTUS nominees give any Senator plenty of room to vote no citing the President's own politics based standard.

As for the Hispanic angle, being from Texas I understand what some of these Senators are up against.  They have two things working in their favor: 1) the Democrat's deplorable and overtly racial treatment of Miguel Estrada and 2) that such behavior had no effect on Democratic electoral success.

My advice to any Senator who principally chooses to vote No is to 1) praise her background; 2) reiterate the principled approach the GOP took towards Sotamayor vis-a-vis the Democrat's approach to Miguel Estrada; 3) acknowledge that then Senator Obama voted against Roberts and Alito for purely political reasons; and 4) make a principled stand against Soromayor on either gun or property rights as she has provided amply troubling opinions on both (her statement that she hasn't thought about whether unborn babies have rights is disqualifying in my opinion as well).

Do As I Say, Not As I Do: Ricci, Affirmative Action and the New York Times

In the wake of Ricci the Times had a scathing editorial that lead with, "On Monday, the Supreme Court dealt a blow to diversity in the American workplace."  In the article the Times went out of its way to both support the dissent and provide cover for Sotomayor.  Following this, Maureen Dowd went on to write a column on the confirmation hearings entitled "White Man's Last Stand."  In this column she said that

"A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that."

Jeffery Lord decided to look into "diversity" at the Times and not surprisingly he found a bunch of hypocrites.

"It seems the "American workplace" (to use the Times description) that is the New Haven fire department has a higher percentage of minorities than the American workplace that is…yes indeed… the New York Times editorial board its very self. To be quite specific:

• The New Haven fire department, according to press accounts, is 43% black and Latino. Or, if you prefer the term of art, 43% of the fire department is "minority."

• The New York Times editorial board, according to the information provided by The New York Times, is -- wait for it -- 12% black and Latino. Or, again, 12 % "minority" if you prefer the term.

• The New York Times Op-Ed page team of columnists, an elite group of which Ms. Dowd is a star, is 19% black and, again according to theTimes listing of its Op-Ed page columnists, 0% Latino."

Lord goes on to tear Dowd and the Times apart over their blatant hypocrisy.  Read the whole thing, and keep it in mind next time the Times jumps on its high horse to lecture the country on affirmative action and diversity.  

Should the Nominee Just Stay at Home?

Steve Chapman argues that SCOTUS nominees should skip their own hearings because, as seen in the Sotomayor hearing, the nominee is just going to answer in a way so as not to reveal anything that might jeopardize her confirmation.  Indeed, Sotomayor even repudiated Obama's "empathy" standard along the way just to avoid any possible misteps.

"So why bother with this exasperating ritual? The republic managed fine without it for a century and a half. Justices from John Jay to Oliver Wendell Holmes Jr. were confirmed without having to argue on their own behalf. Not until 1925 did a Supreme Court nominee agree to appear before the Judiciary Committee. ...

Eventually, the tradition of reticence gave way and nominees found themselves with no choice but to show up and submit to lengthy interrogation under bright lights. Sometimes the hearings yielded helpful information.

But in 1987, after Robert Bork spent days elaborating controversial positions he had taken as a professor, his nomination went down in flames. So his successors learned to use as many words as possible to say as little as they could. That's how confirmation hearings degenerated into a tedious time suck on the order of watching third-graders try to pry open a locked safe with a Q-tip.

If the Judiciary Committee wants to know about how a prospective justice will behave on the court, it can look at her writings, speeches, and record as a lawyer or judge. It can ask those who know her for insights into her temperament and personality. It can summon legal experts to analyze her publicly stated thoughts. It can read her horoscope. None of these could possibly be less fruitful than the current practice."

I think there is something to Chapman's argument, but I think it can be addressed in another way.  I would like to see Senator's focus more on "clauses not cases" as Randy Barnett previously put forth in an Op-Ed leading up to the hearings.

"Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves -- as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford -- will tell us much about a nominee's approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something."

This is not to suggest that a nominee's "Wise Latina" or Ricci will not be addressed in the future; it merely reflects the reality that these issues are unlikely to be honestly and openly debated by any nominee.  Any number of experts can and are called by Senators to weigh in on varying cases and/or speeches by the nominee as highlighted by my post below on property rights.  By focusing on clauses instead of cases something educational might actually result from these hearings instead of the bore they have now become.  Most importantly, it would show that a nominee has thought seriously about the Constitution, generally, in a way untethered to a particular case or preferred outcome, which, along the line of Sotomayor's comment to Sen. DeMint that she had never thought about whether an unborn child has any rights, are more beneficial to the public debate.

Property Rights' Big Day

Ilya Somin became the first witness to every be called to testify at a SCOTUS nomination hearing on property rights.  Sotomayor's decision in Didden undoubtedly sparked interest in a field that is typically treated as a red-headed step child by Republicans and Democrats alike.  His written testimony provides a great overview of property rights in a post-Kelo world.

Judge Sotomayor has said that she “strive[s] never to forget the real-world consequences of [her] decisions.” The real world consequences of judicial failure to enforce public use limitations on takings are bleak. Perhaps the most important shortcoming of economic development condemnations is that they are often used to transfer property from the politically weak to the politically powerful. It is not accidental that the Kelo condemnations were in large part instigated by the influential Pfizer Corporation, which stood to benefit from them.17 Similarly, the famous 1981 Poletown condemnations – in which some 4000 people were forcibly expelled from their homes in a Detroit neighborhood in order to transfer property to General Motors to build a new factory – also benefited locally powerful interests such as the United Auto Workers labor union and of course General Motors itself. In both cases, the people displaced were mostly poor or lower middle class residents and smallbusinesses with little political influence.18 It is difficult to imagine an economic development condemnation that transfers property from a powerful interest such as Pfizer or GM to people with little political power, and there are few if any such cases on record. Since World War II, hundreds of thousands of Americans – most of them poor and lacking in political influence - have been forcibly displaced by economic development, urban renewal, and “blight” condemnations of the sort licensed by Kelo and previous Supreme Court decisions that allow government to condemn virtually any property. As the National Association for the Advancement of Colored People and other civil rights groups pointed out in an amicus brief they filed in support of the property owners in Kelo, economic development takings continue to disproportionately victimize poor and ethnic minority property owners.

Since economic development takings are often driven by political rather than economic considerations, it is not surprising that they generally fail to produce the economic development that supposedly justified them in the first place. By destroying existing businesses, homes, churches, and schools, they often inflict economic damage on communities that outweighs whatever benefits they create. The problem is exacerbated by the fact that, in most cases, neither the condemning authority nor the new private owner of the condemned property is under any legal obligation to actually produce whatever economic benefits were promised as justification for the taking. Predictably, this state of affairs gives public officials and corporations an incentive to inflate claims of projected economic benefits, which are then used as justifications for condemnation.

He also comments on her particular handling of the Didden case.

In 1999 the village of Port Chester, N.Y., established a “redevelopment area,” giving designated developer Gregg Wasser a virtual blank check to condemn property within it. When local property owners Bart Didden and Dominick Bologna sought a permit to build a CVS pharmacy in the area, Wasser demanded that they pay him $800,000 or give him a 50 percent partnership interest in the store, threatening to have their land condemned if they said no. They refused, and a day later the village condemned their property.

Didden and Bologna challenged the condemnation on the ground that it was not for a “public use,” as the Constitution’s Fifth Amendment requires. Their argument was simple and compelling: extortion for the benefit of a private party is not a public use. Nevertheless, in a short, cursory opinion, Judge Sotomayor’s panel upheld the condemnation.

With the backlash created across the country as a result of Kelo, I thought this would be an area for Republicans to take advantage without having to delve into racial politics.  Indeed, the racial politics in takings cases are on their side.  Nevertheless,  congratulations to Ilya and hopefully this marks the beginning of a resurgence in the importance of protecting property rights.

Did Judicial Liberalism Surrender?

Many echoed the view that Sotomayor either had a confirmation conversion or she outright lied to the committee.  She repudiated everything from her "wise Latina" speech to Obama's "empathy" standard.  Instead, Patrick McIlheran declares this the week that judicial liberalism gave up.

Why such a thorough repudiation of all that progressives feel? Why must Sotomayor be portrayed as identical to a George W. Bush appointee before Democrats can vote for her?

Because, apparently, that's what Democrats suspect the public wants. On some level, the president and his congressional allies believe the public would not stand for a justice who thinks the Constitution must breathe modern air, that world opinion must inform our law, that abortion is a constitutional right if not a sacrament and that who you are should matter to how the law treats you. ... 

Either way, what's become clear is that the week that was supposed to be the humiliating rout of old white guys in the Senate has turned into the surrender of judicial liberalism. That has become the philosophy no potential justice can admit to, even when her president owns the Senate. Whoever in the administration coached Sotomayor knows this: A conservative Supreme Court is not at odds with America. It is its reflection

What is interesting is how little liberals actually know about conservative judicial philosophy and how they come off as a result.  This is embodied by Sen. Shumer's opening remarks.

In his introductory comments at Monday's hearing on prospective Supreme Court justice Sonia Sotamayor, Sen. Chuck Schumer (D-NY) boasted that over the course of her career, the nominee "ruled for the government in 83% of immigration cases, in 92% of criminal cases." This apparently is a plus. ...

Mother Jones correspondent Stephanie Mencimer's summary of the hearings thus far is a bit over the top, but not by much:

Republicans would accuse Sotomayor of being a soft-hearted minority, and she would parry with examples from her 17-year judicial career where she'd been as mean or meaner than any white guy on the bench.

This shows that all Schumer and the Democrats know is a results oriented judicial philosophy.  There is no thought to principles of interpretation or a limited role for the judiciary, just results.

Sotomayor is likely to be confirmed and just as liberal as the right feared and the left hoped.  What is sad is the American people didn't get to hear the true Sotomayor make her case.  Judicial liberalism may have surrendered in the confirmation hearing, but it will undoubtedly still hold four votes on the Court.

Update:  Byron York suggests that the Republicans let it surrender all too easily.

For Republicans, the confirmation hearings for Supreme Court nominee Sonia Sotomayor were a missed opportunity. Not an opportunity to defeat her — with 60 Senate Democrats determined to confirm President Barack Obama’s first Supreme Court choice, Sotomayor will undoubtedly prevail. But Republicans had a chance to delve deeply into Sotomayor’s record, to reveal the worldview and background of the next Supreme Court justice, and they didn’t take advantage of it. ...

Sometimes, she descended into non sequitur. On her final day of testimony, Graham asked, “Do you believe that your speeches, properly read, embrace identity politics?”

“I don’t describe it as identity politics,” Sotomayor responded, “because it’s not that I’m advocating the groups do something illegal.”

What in the world did that mean? Graham didn’t follow up.

Nor did Republicans follow up on dozens of other questionable statements. And that was the GOP’s failing. To uncover the real Sotomayor, the activist as well as the judge, required asking short, persistent, fact-based questions. Instead, several Republican senators speechified, lingered on the “wise Latina” issue, and failed to explore in depth her work at PRLDEF. They let her evasions stand.

And in the end, they gave up. As elected officials, the GOP senators didn’t see the value in a scorched-earth fight they were going to lose anyway. And now Sonia Sotomayor — whoever she is — heads to the Supreme Court.

The NRA Comes Out Against Sotomayor

The National Rifle Association has issued a statement officially declaring its opposition to Judge Sotomayor's confirmation to the Supreme Court.

The statement can be read here.

This announcement is encouraging because of its potential to impact the votes of Democratic senators from red and swing states, who are especially wary of upsetting gun rights advocates in fear of the group's ability to thwart their hopes for reelection.

Poll: Plurality Oppose Confirming Sotomayor

A new Rasmussen poll shows that a plurality oppose the confirmation of Sotomayor: 43% are opposed to her confirmation while just 37% are in favor.  It will be interesting to see whether opposition continues to grow as Sotomayor's poor performance continues on day 3.

Ed Morrissey rounds-up reviews of Sotomayor's performance so far and they aren't good, which provides anecdotal support for Rasmussen's polling.

Inherent Physiological Differences

Sotomayor’s explanation, in response to Sen. Cornyn, of her statement that “inherent physiological or cultural differences” may result in gender and ethnic/racial differences in judging has to be her worst performance this week. Most of her response completely evaded Cornyn’s question, and the remainder of her answer did nothing to assuage concern that she believes there are inherent physiological differences and “differences in logic and reasoning” in how women and minorities think.

Quote of the Day

It comes from liberal Georgetown law professor Michael Seidman.

"Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified."

Update:  GOP staffers question the truthfulness of Sotomayor's testimony.

"After a night of studying Sotomayor's testimony, Republicans will have more questions about what they view as her misrepresentation of her record. GOP senators know that Democrats are committed to confirming Sotomayor, and, with a 12-to-7 advantage in the committee and 60 votes in the full Senate, they don't need any Republican support to get it done.  But they are troubled by her answers, by her attempts to deny the clear meaning of her words from the past.  And that could result in growing, rather than diminishing, Republican opposition.  'We heard a lot of things that were not factually buttoned down,' the senior GOP aide said.  'If that's because she and the White House think she has the votes and doesn't have to answer, then some Republicans are going to be troubled by that.'"

PRLDEF: Sotomayor vs. the Facts

Sotomayor portrays herself as barely aware of the activities of the Puerto Rican Legal Defense & Education Fund during the 12 years that she served on its board. So let’s review her description and the New York Times’s description of her time on the board:

“[Sotomayor] played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights. The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.” – NY Times, May 28, 2009

“I served … in the following capacities: Member and Vice President, Board of Directors; Chairperson, Litigation and Education Committees for the Puerto Rican Legal Defense and Education Fund.” – Sotomayor’s Senate questionnaire

Abortion and Firearms as Civil Rights Issues

In responding to Sen. Graham, Sotomayor justifies PRLDEF taking a position on abortion – in fact, the radical position of equating the denial of federal funding for abortion with slavery – based on the argument that abortion is a civil rights issue. Someone should ask her if she agrees with today’s article by Ken Blackwell and Ken Klukowski explaining why Second Amendment rights are an important civil right, especially for minorities.

CFJ on Twitter

Thanks to my colleagues Christina Pesavento and Dylan Marck for summarizing my live blogging on Twitter, while adding their own insightful commentary.

http://twitter.com/comforjustice

Sotomayor on “Inherent Physiological” Differences of Minority Judges

Good cross examination by Sen. Kyl on Sotomayor’s theory of ethnicity-based judging. Maybe I missed something, but why haven’t any senators asked Sotomayor about the most shocking statements in her Berkeley speech, specifically:

“Whatever the reasons why [judges of color] may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning …” (emphasis added)

“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.” (emphasis added)

Even Senator Feingold

Wow, even Sen. Feingold is expressing concern about Sotomayor’s ruling that the Second Amendment doesn’t apply to Wisconsin and other states. When I said that Second Amendment concerns among red and purple states Democrats are the key to credibly challenging Sotomayor’s confirmation, it’s not Sen. Feingold I had in mind.

Note to Self

Note to self from Sonia Sotomayor: At every possible opportunity, repeat the line about policy being the job of the other branches. I don’t really believe it – see Duke University and my other speeches – but MSNBC will eat it up.

Where’s Her Empathy?

Sen. Grassley or the next Republican to question Sotomayor should draw a comparison between her property rights decision in Didden and the Supreme Court’s Ledbetter ruling, upholding a statute of limitations defense to Lilly Ledbetter’s pay discrimination claim. Democrats have repeatedly called the Ledbetter decision an outrage because of its narrow reading of the statute of limitations. Doesn’t the same logic apply to Sotomayor’s narrow use of the statute of limitations to throw out Mr. Didden’s claim that extortion is not what the Founders had in mind when they included “for public use” in the Fifth Amendment’s Takings Clause?

DiFi Dead Wrong

Sen. Feinstein just said that the Supreme Court has struck down dozens of federal statutes as beyond the reach of the Commerce Clause. I can only think of two, the Gun Free School Zones Act and the civil remedy provision of the Violence Against Women Act.

I got a kick out of Feinstein’s remark that the Court shouldn’t put any teeth in the limits on the scope of the Commerce Clause because it gets in the way of Congress doing its job of legislating. Call me naive but I thought Congress’s job was to legislate only within the bounds of the Constitution.

Also, it’s good to hear that Feinstein is bothered by all the calls her office is getting expressing concern that Sotomayor is a judicial activist. Sounds like us Sotomayor critics are having an impact.

Leahy: Why We Blocked Estrada

Sen. Leahy just admitted that Miguel Estrada, the man who might have been the High Court’s first Hispanic justice, was obstructed by Senate Democrats for two years to punish the Bush Administration for not releasing documents, despite the fact that, in Leahy’s words, the lack of release was “no fault of [Estrada’s].”

More on Sotomayor’s 2nd Amendment Theories

Sotomayor just explained in a very matter of fact manner that, of course, nunchucks can be banned under a rational basis test because they “can hurt somebody.” She then said her holding in Maloney was a “very narrow ruling.” She seems unaware that the “can hurt somebody” standard makes Maloney a very broad ruling, because except for toy guns, all firearms can hurt somebody.

Second Amendment

Re Sen. Hatch’s 2nd Amendment questions, Sotomayor’s 2009 Maloney opinion strongly implies that the rational basis test she would apply to state regulation of firearms is whether they are “designed primarily as a weapon.” In other words, Hatch is correct that, under Sotomayor’s reasoning, all state gun restrictions are lawful.