378. Bigforest

Well, obviously Sonia Sotomayor is going to be confirmed.  As some Republicans have belatedly realized, once they allowed people like Newt Gingrich to make her ethnicity and gender the chief issue, they assured her confirmation, barring only a dead-girl-or-live-boy or, you know, nanny-tax sort of revelation.  Something super-serious like that.

(On the other hand, the Salamander knows from racism.  His old congressional seat included the tree from which Leo Frank was lynched.)

Given that every single one of our sitting Supreme Court justices was selected through affirmative action - just try to find someone on that court who didn't go to Yale, Harvard or Northwestern (and soon there won't be any "Northwestern" in that list) - it's hardly convincing to complain that the nominee's problem is that she is ever-so-slightly different.

The real problem with the nomination, I think, is  that she's too much like the others.  Yet another federal appeals court judge!  (See post 375.)  On the other hand, she was also a trial court judge, which will make her (after Souter departs) the only member of the Supreme Court with that experience.

Appellate judges who don't first serve as trial judges are prone to stupid decisions.  Not because the judges themselves are stupid, of course, but because they literally don't know what they're doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite 'workable'." 

After three years, that test has come to mean something different in every state - literally, without exaggeration, different in each of the 50 states.  It produces contradictory results on a daily basis. It's become a constitutional Rorschach test, revealing judges' biases with hi-res fidelity.

So was Scalia lying?  Of course not.  How could he have known enough to be able to lie about what he was doing?  He's never been a trial judge, never practiced criminal law, and hasn't practiced any kind of law since 1967.  He was just guessing.

Trial court experience is far more important than appellate experience to a nominee's success as a justice.  More is at stake than the difference between pondering an evidentiary question after reading exhaustive appellate briefs versus making a decision during a whispered bench conference, though of course that's a lot. 

The other thing is that appellate judges don't have to ponder.  They don't even have to read the briefs.  They can delegate all that to their clerks or staff attorneys, and some of them do.

But you gotta love the faux-uproar over Sotomayor's "better conclusion" remark.  It's American politics at its trivializing best.  Should she have said a Latina woman would reach a worse conclusion than a white male?  No? 

Then the correct phrasing must be: exactly the same conclusion.  That would be possible only if The Law exists outside of judges' rulings, as an encyclopedia that needs only to be consulted to give the one right answer - in which case the Supreme Court's librarian could do the work of The Nine.  (Whoops.  Sorry, wrong Nine.)

But what if - just what if - Supreme Court justices aren't umpires?  What if, say, they're the only government workers entirely untrammeled by the law, because "the law" is never anything than what they say it is - never anything but an expression of their will? 

In that case, we would expect wealthy country club Republicans to vote like wealthy country club Republicans, and wouldn't need Jeffrey Toobin to tell us they do.  We might expect cautiously liberal, independently-wealthy academics with little experience of life to vote like cautiously liberal, independently-wealthy academics with little experience of life.  Gee.  Wouldn't that be wild?

Liberals are kidding themselves if they think Sotomayor's ethnicity and gender is going to make nearly as much difference as she suggested, much less as much difference as the right is afraid it will.  Female judges can be extraordinarily brutal toward women.  For instance, it was a female judge who said gang-raping a prostitute at gunpoint was theft of services - and the judge felt smug about it, too.  (See post 320.)

I had a case in which a husband severely beat his estranged wife.   Autopsy photographs showed that her entire scalp was a single massive bruise.  Her forearms were entirely covered with bruises, too - he had continued beating her head long after she stopped trying to cover up.  Want to guess the gender of the judge who described those injuries as "various cuts and bruises"? 

And Justice Ginsburg's championship of women's issues is pretty tightly circumscribed by her class.  She has no sympathy at all for women who allow themselves to become victims of violence.  One might even describe her attitude as contemptuous.  (See the links in post 375.) 

When female judges are so contemptuous toward female victims, I'm not sure if it's because they're trying too hard to prove their impartiality and/or toughness, the way ex-prosecutors and ex-public defenders sometimes bend over backwards on the bench; or if it's just gender-neutral class prejudice; or if it's a psychological reluctance to identify with the vulnerable.  Maybe all three.  Whatever the explanation, the phenomenon is real. 

Liberals who think Sotomayor's gender will automatically lead her to rule in ways that benefit women are being as dumb as Gingrich and the crackers who kept voting for him.  If she is prepared to allow the democratic branches to use their power to benefit vulnerable women, it won't be because of her sex but because of her political and moral convictions - which, of course, are the things we're not allowed to know in advance.

Comments

[John Thacker]

"On the other hand, the Salamander knows from racism. His old congressional seat included the tree from which Leo Frank was lynched."

That's true. That's why on his first Congressional campaign he campaigned at black churches asking for their support against the segregationist Democrat he was running against, Jack Flynt.

http://www.time.com/time/magazine/article/0,9171,983877-12,00.html

http://books.google.com/books?id=XQeYu-GxlKwC&pg=PA153&lpg=PA153&dq=Jack+Flynt+Georgia+segregationist&source=bl&ots=szOkVo5Ot6&sig=NhksOJrkfGfv_Cxqjj755fiRm9A&hl=en&ei=uhJFSsjxCN-ntgfjk5iuAg&sa=X&oi=book_result&ct=result&resnum=2

[Joe]

All Supreme Court nominations create controversy and arguments. The spectacle however is beginning to interfere with good government.