A special poll of bloggers from The National Journal asked "Would it be politically smart for Republicans to try to block the confirmation of Judge Sonia Sotomayor?" Among the Left bloggers, the unanimous answer was "No." On the Right, 53% said "No" and 47% said "Yes."
I voted "Yes," and wrote: "The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences. [And, I should have added, neither did the Dems. who filibustered Miguel Estrada, who, like Sotomayor, is a Hispanic with an impressive life story.] Sotomayor is on the wrong side of fairness, empathy, the Constitution and the American people in regards to firearms ownership (Maloney v. Cuomo; United States v. Sanchez-Villar); wealthy people using the government's eminent domain power to extort money from small business (Didden v. Village of Port Chester); and a racial spoils system for government employees (Ricci v. DeStefano)."
Should Repubs. Fight Sotomayor? Left Bloggers say No; Righties Split:
The second circuit was just not at liberty to revisit the settled matter that the 2A is not incorporated against the States by the 14A. Whether or not that is inconsistent with the current incorporation doctrine (obviously yes) and how to resolve that matter is up to the Supreme Court.
[ Aside, of course I support incorporation and I furthermore think it's a dead ringer that the Court will do so. The question is whether the Circuits have the right to do so is entirely separate from what the Supreme Court should do -- "vertical" stare decisis is a lot different from "horizontal" stare decisis.]
"The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences" seems clearly responsive to the question whether it would be politically smart for Republicans to try to block the confirmation of Judge Sotomayor.
The remainder of the response seems to be based on the unstated premise that it's politically smart to oppose nominees who are on the "wrong" side of the issues listed, but I don't think the premise is so farfetched that the response is a nonsequitur.
Not that I think Huckabee knew this, but a picture of Sotomayor's yearbook page circulating in the media has her name as "Sonia Maria Sotomayor."
I think it's just as likely that Huckabee is still subconsciously angry for understudying Tony in high school.
"And suddenly that name
Will never be the same
to meeeeeeeeeee!"
This is true of most people in most analytical pursuits. When your only tool is analysis (and arguably rhetoric), less skillful people usually fail to effectively counter more skillful people.
There seems to be a very strange conception of what the inferior courts are meant to do floating around this board -- as if they were entitled to anticipate new Supreme Court doctrine and preemptively overrule standing precedent because they think (correctly even) that the Supreme Court is likely to do so soon.
Moreover, the circumstances are entirely different now. While I agree that the Estrada nomination fight probably didn't do signficant damage to the Democrats, that is probably due largely to the lower profile of the Estrada nomination, and the overall positive standing of the Democratic Party among Hispanic voters prior to the Estrada nomination.
Sotomayor has a much higher profile -- so the impact of any missteps is likely to be greater. But more importantly, the GOP's overall reputation among Hispanics is pretty damn low already thanks to the manner in which the GOP demagogued the undocumented immigrant issue for the last couple of years. Thus, it may not matter much in terms of short term Hispanic opinion of the GOP. But by angering the Hispanic community on the Sotomayor question, the GOP could easily wind up turning millions of Hispanics into "lifetime Democrats" who won't even consider supporting GOP candidates for decades to come.
So I really do hope that the GOP goes after Sotomayor with both barrels. Keep trying to present her as some kind of Affirmative Action candidate who is not qualified to serve on the Supreme Court -- the fact that she has more experience on the federal bench than any nominee for SCOTUS for at least the last 70 years is something that everyone in the Hispanic community will be aware of, and efforts to cast her as unqualified will be seen as a reflection of right-wing bigotry that it truly is.
yes. the overall hispanic community is very pleased with her nomination. In fact, except for the 22%'ers, everyone is happy with her nomination.
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Holding that a state may not prohibit weapon possession at home would not work a reversal of the holding of Presser (a state law that forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not infringe the right of the people to keep and bear arms), or Cruikshank (the 2nd amendment does not support an criminal indictment averring non-government action against the 2nd amendment)
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On topic, I think a certain amount of objection to Sotomayor will be a benefit to the GOP, and a relative absence of objection would be politically damaging to the GOP. Sotomayor's elevation to the Circuit Court was opposed by 29 Republicans, and a similar degree of objection is politically appropriate.
Also, was it so necessary for the GOP to chime in on the first news cycle for that they had to go to war with such inane talking points? At least Kopel (uncovincingly) cited some of her decisions. Having Republican activists on CNN all day spewing nonsense that could apply to anybody they don't like (activist! socialist! affirmative action! mediocre!) doesn't improve their credibility when going to the wall later on.
Seriously, they have something like 2.5 months. Wouldn't it be smarter to say something like "we should examine her writings for examples of XXX" and save the spittle for after the oppo researchers are done reading 17,000 pages of rulings? Wouldn't it be much more dramatic to drop some controversial statement on her during the hearings, than to bring them up in a completely transparent ploy to piss on the news cycle?
Actually, don't take my advice. Listen to Kopel, her name is spelled M-A-R-I-A, and she's Mexican.
Let me rephrase that: I don't see how conservatives can persuasively make a big deal of the importance of judges following the law and at the same time complain about Maloney.
I see this as almost a non-lose proposition for Democrats. Obama will get residual good-will from the nomination (assuming, of course that he never appears to throw her under the bus if her nomination goes south for some reason). If the Republicans somehow do derail her, I hold out hope that Obama will have the stones to nominate a true liberal justice (well off to the left, in Ginsburg territory). We have 4 justices that are reliably very very conservative, and good for them. A bit more balance, with a few more *young* ultra-liberal justices would be nice. And if her nomination fails, I expect that Republicans will suffer in the eyes of the public, other than their existing base, of course.
The problem for the Republicans is that they can't attack President Obama directly, since he still maintains decently high ratings. But attacking her attacks him, esp. if he can be portrayed has having picked her to get a "two-fer", and thus filling such an important post through affirmative action (regardless of her real qualifications). And this feeds into the meme that Obama got the Presidency essentially through his color, and that he (along with the judge here) is deep down an extremist, etc.
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Short answer: No.
Brief explanation: I haven't studied either case.
FWIW: I haven't ever expressed an opinion on either case.
I also hope that at least some of those who oppose this nomination regularly refer to the nominee as "senorita" or "Maria" or "the judge-ita" throughout the confirmation process.
Also, you are positing "good will", but that will only fly on the left, where Obama is already strong. The white blue collar workers (and their families) are likely to be less impressed with a nominee who appears to be an affirmative action hire here, and maybe quasi-racist too boot.I don't think that very many are going to challenge her experience or her credentials. And they aren't going to filibuster her, since they don't have the votes to make it work. But I think that you underestimate how well attacking affirmative action and reverse discrimination works in the white working class, which is another critical Democratic demographic. Keep in mind that they are the ones who suffer from the New Haven type of reverse discrimination, and they know it.
new Rushublican Party... More, please.
Heh, sorry. The levity didn't come out right.
Maybe DK can explain, since he has expressed an opinion that Sotamayor is hostile to property rights instead of following the on-point precedent in Kelo (which is hostile to property rights).
While I understand this argument intellectually, I don't really get it.
Of course judicial philosophy is relevant, but the Supreme Court in particular is so intricately tied in with policy decisions that I think it's almost impossible to separate political concerns from "Judicial" ones.
It necessarily follows that I think it's perfectly acceptable for the Republicans to oppose Sotomayor simply because they don't like her politics. But I don't really hold it against Obama (or any other dem for that matter) for voting against Roberts or Alito because they thought they would make poor policy decisions.
Second, there is some political gain to be made from opposing her -- so long as you don't look like a buffoon in doing it. When push comes to shove, most Americans prefer a judiciary who view themselves as "umpires" not "empathists" and it pays to remind them that voting for Obama has consequences in this realm.
Third, the Ricci case is probably a great point of attack. It's about affirmative action, which, as others have pointed out, is something the Democrats are vulnerable on. And it was handled in a political abusive manner. No less than Judge Jose Cabranes -- a fellow member of the Second Circuit and a fellow Latino -- detailed the shenanigans involved in the whole affair, and criticized the perfunctory manner in which it was dealt.
That is a good basis to question the nominee. Do you agree with Judge Cabranes? Why is he wrong?
If its intent is simply to lull Republicans into dropping opposition, it's quite a piece of propaganda. Wonder what validity there might be to the speculation.
The Democrats crucified Miguel Estrada who was nominated by President Bush in 2001 and filibustered his nomination in 2003. From the time of his nomination in 2001 until the next national election in 2004 Hispanic Party registration remained essentially the same.
President Bush may have gotten 5 or 6 points more from Hispanic men in 2004 than 2000 but the female Hispanic vote stayed constant. My guess is that increase in the male vote is attributable to Bush's tough line on terror rather than on what the Democrats did to Miguel Estrada.
The confounding factor here is the MSM I would think. Their coverage of the filibuster of Miguel Estrada will pale compared to the ravings that will come forth should the Republicans somehow attempt to filibuster Sonia Sotomayor.
So basically the answer to your question is I dunno.
I think that this statement, which appears to be straight from a right-wing echo chamber, is absurd.
Your theory, as I understand it, is that by opposing this popular nomination, the Republicans will successfully "remind" the majority who voted for (and still favor) Obama that horrific "empathy," rather than their preferred "umpiricism," is what we can expect from Obama nominees?
Oh yeah, THAT observation will teach 'em that they should have voted for McCain.
Boy, will their faces be red.
Almost six in ten Americans can't identify a single justice on the Supreme Court. The highest ID rate for any single justice is something like 25%. I really don't think people care, in general. The exception to this is that I figure minority groups might be a bit extra excited about her selection, and Reagan-Democrat types might be turned off at the whiff of tokenism coming from Obama, who was supposed to be above that kind of thing.
And for the excludedavidb guy, you're flat wrong. Polls done since Souter retired show a more than 2-to-1 public preference for justices who decide cases based on adherence to the written law rather than on notions of "fairness", which is about as complex an understanding as the public is going to have of the "empathy" thing.
Choose, but choose wisely!
And you don't see a contradiction in a public that universally can't name a supreme court justice (and I assume much less describe what sort of stuff the Supreme Court actually does) and taking seriously a poll of the same public that purports to show public opinions of specific judicial decision making processes?
That's actually my point. The best the public is going to understand is that one side says justice is blind and the other side talks about empathy and wise Latinas. It's a little more complicated than that, but it'll be what almost everyone takes away from it. Indeed, it already is (absent the new racialist aspect). That was my point in citing those polls to refute the earlier guy's glibness.
The Democrats avoided their hard vote; the Republicans are facing theirs.
You make a good point about affirmative action and white working class workers. If this were a debate on an affirmative action law, then Republicans might get the better of it politically--any Democratic gain in Hispanic voters who might benefit from affirmative action would be offset by Democratic loss in the white, working class who would lose. But, it's not a straight affirmative action debate and I don't think Republicans will be able to frame it that way in the media. It's a debate about a particular Hispanic judge. Hispanics will not see Republican attacks on Sotomayor not as prinicipled opposition to affirmative action but as anti-Hispanic. White, working class folk may be sympathetic to the argument, but by and large won't really care. There's an assemetry in interest working in the Democrats favor. Hispanics will be following the argument more and will be much more angered at Republicans than white working class folks will be angereed at Democrats.
Don't you Republicans start to resent being sent to the front lines with weapons that backfire?
As to the racial issue, like Chief Justice Roberts, Stephen Colbert, and a number of the commenters here, I can't see race now that our countries racial problems have been solved. Like them, I agree that if we just say that racism is over, it's over, so we should stop talking about it. In fact, it's racist to even argue that some people are still racist.
Well, that proves it then. You're right, it's important for the Republicans to "remind" voters, through their relentless opposition to SS, that this horrific, indeed dangerous, nomination of an allegedly empathetic Hispanic judge is the sort of thing they can expect from Obama.
Perhaps you could add an "I told you so" from time to time. Or mention a few views of your party on immigration matters.
Let me know how this works out.
Finally, I find it hard to understand how the Second Amendment can be deemed incorporated in the Fourteenth, whose framers, as Justice Harlan (2) clearly demonstrated, did not intend to enfranchise the freedmen, let alone arm them. I have read the debates on the Fourteenth Amendment. There is not a word in them to suggest that the states were being impaired in their ability to regulate their militias, organized or unorganized.
Sotomayor on this issue is not only a good New Yorker but a good constitutionalist. She is also, let us not forget, an alumna of the New York County District Attorney's office, a background not shared by the conservative justices, who in their career choices as well as their enthusiasm for preemption for 'good' causes have shown the same attachment to localism as the courtiers of Louis XIV. None of them have deigned to dirty their hands in state or local government.
George Liebmann
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It's an "old school" attitude, also on display in the Presser case. Even if there was no 2nd amendment, neither the states nor the feds have the power to prevent a free people from keeping and bearing arms.
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Now, if the people decide they don't want freedom, by all means they deserve to be disarmed.
I'm thinking: 'Judge Chica.."
Dare I say "penumbra?"
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Heh! No such utterance in Presser, hadn't been invented yet.
Now, "application of Heller to the states" is one way to get there, but the old school would skip all the selective incorporation malarkey and simply point to Presser and say "you can't ban the people from keeping arms."
All of that is dicta, of no binding effect and might as well not be there except to inform the reader of how the Court got to its conclusion.
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Old ground. Covered at 5.28.2009 1:17pm. Would add that in light of the "penumbras" comment that elicited my response, the Court my response hypothesized as pointing to Presser would be SCOTUS.
Not sure what the point is. Anyway, my question is, which part of the Constitution did the Presser Court rely on for that dicta?
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You said "penumbra," to which I said old school approach would just point to Presser - and the Court that I envisioned using old school would be the same court that has the power to invent penumbras. Oren came back and said that the passage I took from Presser wasn't binding. I was simply reiterating that the Court I had in mind was SCOTUS, where "binding" takes a dimension all its own.
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-- which part of the Constitution did the Presser Court rely on for that dicta? --
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The Cruikshank and Presser cases read as though the source of all legitimate government power, the people, inherently possess the right to keep and bear arms, and that right wasn't expressly surrendered. Directly expressed was that if the states would not honor the people's right to keep and bear arms, then the states would be stepping on the federal government's power (in addition to stepping on the people's power).
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The whole case is online. It isn't very long. I speculate that you've read it, know there is no express language connecting the US Constitution to the right of the people to keep and bear arms (as against the states), and fancy that you've crafted a "gotcha question." If the discussion were to be carried out, it would illuminate the difference between seeing the constitution as working a grant of powers by the government vs. to the government.
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The Presser case does more direct work in this regard, as to the right of the people to petition the government.
In other words, there's nothing in the Constitution that says "the states cannot, even laying the [2d Amendment] question out of view, prohibit the people from keeping and bearing arms." So the Presser Court either found it in the penumbra of another provision or not in the Constitution at all, in which case what's the source of federal authority to enforce it?
[All this, of course, assumes hypothetically the Court would purport to make that Presser statement with authority rather than in dictum.]
For some reason I read the part of your comment I quoted, got serially interrupted, and when I finally returned forgot I hadn't read the rest. So I just answered that part. Now I see you anticipated part of my question. Serves me right for over-multi-tasking.
Anyway, the question remains, even in the frame you prefer, which is, by the way, the one I had in mind, i.e., grants to the government, not from. What is the Constitutional authority for granting the federal government that power against the states? You say,
but it's the Court that's doing the expressing, not the Constitution. If you think reading a federal power into a natural right of the citizenry, enforceable against the states, to bear arms doesn't require some fancy penumbrizing, then you're so comfortable with the practice you don't even realize you've become a liberal!
As for the "gotcha" question, I suppose you could call it that, since I have no problem with penumbras. But that also means, to be consistent, I have no problem finding a basis to enforce against the states individual rights enforceable against the federal government. And that includes the rights conferred (or recognized, as you doubtless prefer) by the 2d Amendment. I'm just challenging you to be equally consistent.
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The Federalist/Anti-federalist argument, vis-a-vis the wisdom of attaching amendments to the US Constitution, makes the unanimous view of the grant of power as to the rights of the people quite clear, particularly so in the areas of the 1st and 2nd amendment. I reject your assertion that SCOTUS view of the 1st and 2nd, as expressed in Presser, is finding a right residing in some penumbra.
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I appreciate you laying out your rationale and conclusions, and hopefully will recall your handle(s) as time goes by.
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