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Sotomayor: Yes, You Can Blame Bush

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For Republicans in the Senate, the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.

I have occasionally defended some of Bush's well intentioned mistakes, but there's no way to put a happy face on this one, because it is going to put a woman on the highest court in the land who believes that judges should write the laws, that some racial and social groups are more worthy than others, that gun rights aren't really protected in the constitution, that government can seize your property without due process and give it to businesses and that free speech is a privilege granted by government to some and not others.

The problem which faces Republicans in this nomination, is that they will likely find themselves unable to filibuster or oppose Sotomayor with any vehemence because she is Hispanic and a woman with a record of flaws which are ideological rather than ethical. Already great pressure is being exerted on GOP senators from party leadership to go easy on Sotomayor to earn some credit with the administration for the future. The fear is that opposition to Sotomayor may cost Republicans Hispanic support at a time when they need every new vote they can get and when Hispanic Republican politicians are rising on the national stage, increasing hopes for a breakthrough with that constituency.

The irony is that this would not be nearly as much of a problem for the GOP had it not been for a little noted failure of the Bush administration. The seeds of this situation were planted back in 2005, when Sandra Day O'Connor was retiring, and Bush floated the names of a number of Hispanic judges as potential replacements, including Emilio Garza, Alberto Gonzales and Consuelo Callahan. In each of these cases Democrat Senators told President Bush that he would face a filibuster against the candidate and his response was to back down and look for another nominee who was more acceptable to Democrats. The problem with this morally weak strategy was that it meant that despite his desire to appoint the first Hispanic justice, Bush threw away that opportunity and the chance it provided to score points with Hispanic voters and now that opportunity has been handed to the Democrats.

In 2005 Bush should have picked the best qualified of the Hispanic candidates — probably Emilio Garza — and nominated him and taken his chances with a filibuster. Or he could have nominated the ever-cooperative Alberto Gonzales with the specific expectation that he would be borked for the team. That would have put the Democrats in the position of having to attack and filibuster a Hispanic nominee, costing them support in that community and making the administration and the GOP look like they were the ones fighting for the advancement of minorities in government. Even though the nomination might have been blocked, the result would have been an enormous boost in popularity with Hispanics for the Republicans and a ding on the civil rights record of the Democrats. It's also entirely possible that the Democrats might have been bluffing and would have backed down to avoid seeming hostile to a Hispanic nominee.

As in other situations, Bush played politics like an amateur and failed to push what should have been an obvious advantage; the Republican party is still paying the price of that mistake. If Bush had played the situation the right way in 2005, then today Sotomayor would not enjoy the immunity conferred on the first Hispanic Supreme Court nominee, the GOP would be stronger overall, and might be able to oppose Sotomayor if their ideological concerns are strong enough. But as a weakened party desperate to be liked, the GOP may very well have to bite the bullet, sacrifice principles again and roll over and accept Sotomayor despite her troubling record. And yes, you can blame Bush for it.

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About Dave Nalle

  • Clavos

    The Bush screwup also cost the GOP the bragging rights for naming the first Hispanic Justice.

    Interesting and original analysis on the nomination, Dave.

  • http://www.republicofdave.com Dave Nalle

    Thanks, Clavos. I’m not sure that Sotomayor is as bad as it could get, but having our chances of at least challenging her undermined this way only serves to weaken the bipartisan system even more.

    Dave

  • zingzing

    the man was a a colossal fuck-up in every way. and was elected twice… oh, america…

  • http://www.republicofdave.com Dave Nalle

    And now we’ve apparently got him in for a third term disguised as Obama.

    Dave

  • Arch Conservative

    Apparently Zing prefers colossal fuckups to have Ds beside their names.

    That makes everything OK when wasting trillions of dollars and naming racists to the Supreme court.

  • Glenn Contrarian

    Looks like y’all need some edjimication when it comes to ensuring the sound bites you read are taken IN context, and how taking comments OUT of context (often by omitting certain parts) is a common tool in destroying a good reputation built by an honorable career.

    Give me a couple days and I’ll publish the OTHER side of the story that the RNC (Rush-Newt-Cheney) doesn’t want you to read…including why it’s a GOOD thing that judges have empathy.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Glenn,

    I should say that having empathy is a good quality to have for any person (judges included). But before you write this piece, read Dan Miller’s article on the subject and the thread; at least you should consider the counter-arguments.

  • Jordan Richardson

    And now we’ve apparently got him in for a third term disguised as Obama.

    Really? Kinda makes you wonder what all the fuss is about then…

    That makes everything OK when wasting trillions of dollars and naming racists to the Supreme court.

    I’m hearing this racist label lobbed around, but I’ve yet to read a cogent argument as to why this is the case. Perhaps you’re the wrong guy to ask, Archie, but why is she considered a racist?

  • Glenn Contrarian

    “A ‘morally weak decision’ NOT to have Alberto Gonzales as a Supreme Court Nominee? Dave, is that a truly serious statement? I mean, hey – don’t you think there’s a GOOD reason why NO law firm (including the many who are strongly conservative) has YET to hire this former Attorney General, this man who was once the TOP law-enforcement officer of the entire nation?

    No offense, Dave, but you really need to lay off the Kool-Aid….

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    There was a comment, Jordan, to a WSJ link (provided on another thread), where she is reputed to say something to the effect that a wise Latina woman is likely to come up with better judicial decisions than wise white men.

  • http://drdreadful.blogspot.com Dr Dreadful

    Sounds, Dave, as if you wish GW had pushed through a little bit of affirmative action back in ’05…

  • zingzing

    dave–if obama is bush, pt iii, doesn’t that make bush a socialist?

    i thought obama represented the rise of socialist fascism… but now i hear he’s just the same as bush…

    what’s your message, dave? i’m a little confused. or maybe it’s you.

  • http://twitter.com/tolstoyscat Cindy

    And now we’ve apparently got him in for a third term disguised as Obama. –Dave

    They’re all the same Dave.

    …something to the effect that a wise Latina woman is likely to come up with better judicial decisions than wise white men…

    The effect was actually that being a member of a certain group allows her greater insight into that group. She is merely saying that to some degree, she is a member of the subordinate culture and can much more clearly see through those eyes, whereas a member of the dominant culture would have trouble doing that.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “trouble” – more for some than for the others. But not impossible.

    Wisdom is color-blind, regardless of what source it emanates from.

    A more judicious statement on here part – and less objectionable- would be “as good as …”

  • http://twitter.com/tolstoyscat Cindy

    #14

    That would completely miss my point. I stand by what I said as written.

  • Baronius

    Cindy, that’s nothing like what she said. You’re completely wrong.

  • http://twitter.com/tolstoyscat Cindy

    I guess I’ll have to look at the quote again.

  • http://twitter.com/tolstoyscat Cindy

    “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” [emphasis makes my point]

    I reiterate my position. That’s exactly what I got from that.

  • Baronius

    “Who hasn’t lived that life” doesn’t make the point at all. It would if she were talking about judging fellow Latinas, but she wasn’t. Read the speech.

    I found that particular sentence to be moronic, but I was far more troubled by her meticulous tallying of race and sex, her assertion that we probably shouldn’t try to judge impartially, and ultimately by her rejection of the notion of objective truth.

  • http://twitter.com/tolstoyscat Cindy

    I’ll read the speech.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I don’t see, Baronius, whether it matters here whether “a white male” includes the Hispanics or not. Perhaps you can explain it to me.

    If it’s supposed to – as you say it should, in order for her proposition to be (in your opinion) more coherent – then the distinction at work is between Latino men and Latina women (a sexist one, to say the least).

    But if it doesn’t – and I think this is the right meaning – than the distinction is between a wise and experienced Latina woman (such as herself, in this instance) and a wise and experienced white male (whether he’s Hispanic or not) – and that, too, is a sexist distinction (and could be an ethnic one as well).

    That’s precisely what I find problematic here: the presupposition that one would have to be a Hispanic (and a woman, preferably, too) in order to reach “better,” “more informed,” and “wiser” legal decisions – because a non-Hispanic would (almost by definition) lack in the required empathy.

    If by “better,” “more informed,” or “wiser” nothing more is meant than simply more advantageous and more favoring the Hispanic community, there may be no disagreement here.

    But we’re talking about justice and fairness and wisdom in general which, again, is supposed to be colorblind and not given to favoritism.

    Besides, it flies in the face of the most fundamental assumption about the individual qua individual to say that all our conceptions of justice and wisdom are necessarily relative to the circumstances of our birth – whether we’re a male, a female, a black, a white, or whatever. Indeed, once you allow the relative conception to set it, you’re worst off than you were before, because there’d be no such a thing then as wisdom or justice but only a wisdom or justice of different and competing kinds, for example:

    women’s justice vs men’s justice,
    black justice vs. white justice
    Latino justice vs. Asian people’s justice.

    And so on and so forth.

  • Baronius

    Roger, I don’t fully understand your first two sentences. I wasn’t defending Sotomayor’s position, only trying to speculate under what terms Cindy’s interpretation might be right.

    Sotomayor’s statement if taken literally would be racist and sexist. It would indicate, not just competing kinds of justice as you note, but the superiority of Latina justice. That’s why I doubt she meant it as such. This is one of those cases where a person couldn’t mean what they said and be a mentally healthy contemporary human being. So I assume she was just playing to the crowd. That being said, there were some other comments in that speech that would suggest competing kinds of justice.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    That’s my point exactly – it’s a double whammy – sexist and ethnic. (And if Hispanic men were to be included among “white males”) than it’s at least sexist.

    So yes, the only explanation – she was playing to the crowd, La Raza, because no Supreme Court nominee can seriously stand by that statement.

    To delineate it even further, one could be supporting her nomination on the basis for fairer Hispanic or women representation (in the court); but to support her nomination by her claim that she’d be wiser and more just on a/c of being a Latina or a woman – that’s utter nonsense.

    As to “competing kinds of justice,” I’d buy to a point with one important proviso – we all must aim at “perfect/absolute” justice, regardless of how imperfect it may be at any given point in time. And to construe justice or wisdom as relative concepts is to do away with the pursuit of perfection.

  • Clavos

    Cindy #13,

    The effect was actually that being a member of a certain group allows her greater insight into that group.

    Read the quote as you posted it (which is accurate) again, Cindy. She says she “would hope” that the Latina woman would be able to “reach a better conclusion,” without any qualification as to what the conclusion would be about.

  • http://twitter.com/tolstoyscat Cindy

    Bar,

    I read her speech. It does actually validate what I said in #13. That is what she is saying. It much the same as my own position. Which is probably why I understood her from the quote. I’ll elaborate below.

    It would if she were talking about judging fellow Latinas, but she wasn’t. Read the speech.

    I think you miss her point here. Her whole speech is a discussion of the voice of the marginalized. A quote:

    “Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.”

    She does believe that people from outside ones group can understand those in the group, but she notes that this takes effort. Some don’t care to understand the needs of those outside their group, some are incapable.

    She acknowledges the 9 white male judges who did do that. She wants to point out, also, the people of color and women who argued to win those seminal cases.

    She has a very realistic position. It’s honest and very non-utopian. She doesn’t make the false claim that people are capable of perfect objectivity. She says that people bring the experience of their personal history with them and it influences what they see. That an effect may not be seen in any particular decision, but by having more marginalized people sitting on the bench, changes will be likely because of the different perspectives.

    I particularly love the quote she made of her colleague, “…Professor Martha Minnow of Harvard Law School, states ‘there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,’ I further accept that our experiences as women and people of color affect our decisions.”

    I’m a bit shocked to see how much I have in common with this woman’s viewpoint, who is a judge, as I don’t really care much for judges. But these are very much the same as things I say here about marginalized and dominant culture all the time. I though the speech was phenomenal.

    (note: Just so I am not putting words in her mouth, ‘marginalized’ is my preferred word. She uses the races and gender.)

  • http://twitter.com/tolstoyscat Cindy

    Clav,

    I agree the point I made was not actually stated in the quote. For me, though, it was implied. I think I just understood her, even with that limited quote, based on the similarity in our viewpoints. This is born out by the context of the speech, in which she illuminates further. And, which I may never have read had Baronius not suggested it. I’m so glad he did.

  • http://www.republicofdave.com Dave Nalle

    Cindy, the fundamental problem here is that some of us don’t want a “voice of the marginalized” on the bench. We don’t want SC justices advocating for any special interest groups. We want them to treat everyone equally under the law, not apply the law to give some special preference, regardless of the reasons.

    Dave

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Perhaps that’s the crux of the matter, Dave. There definitely is the need for a “voice of the marginalized” in order to effect any reform (or we’d always be stuck with the status quo), if only as input to inform the highest law in the land. But that law must be able to reflect and balance all voices.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I think the problem is analogous to that of awarding compensation/reparations for sins past. While the idea of reparations makes sense to a point, the question is – for how long must a society do that without sliding into discrimination in reverse?

  • http://twitter.com/tolstoyscat Cindy

    Dave,

    Cindy, the fundamental problem here is that some of us don’t want a “voice of the marginalized” on the bench.

    Then there is only the voice of the dominant. The ‘white dominant male’ so to speak. But the voice is there. It is unavoidable.

    We don’t want SC justices advocating for any special interest groups.

    They have always been advocating for a special interest group–that of the dominant culture. Look at what I quoted above about there only being a favorable ruling on female gender issue since 1972.

    We want them to treat everyone equally under the law, not apply the law to give some special preference, regardless of the reasons.

    This is partly fine, we should try to see objectively. But partly it misses the point that people cannot crawl out of their own skin. The very things we will see or not see, depend on our history.

    She is very clear and very correct in saying that we bring our own eyes to the matter based on what our history is. It’s simply the way it is Dave. To think otherwise is to avoid the problem of reality in favor of pretending something else is possible.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “We bring our own eyes to the matter based on what our history.”

    A good quote. I would like to add that would should try to escape the limits of our particularistic histories in order to be able to think universally – for the humanity at large.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “escape the limits”
    “transcend the limits” is better.

  • Baronius

    I have to go farther than Dave. It is not just that some of us don’t want a voice for the marginalized on the Court; the whole idea is anathema to the traditional understanding of the judiciary.

    Analogy time: have you ever noticed actors doing accents? If you’re familiar with the way an accent is supposed to sound, you’re going to hear a difference. Some actors will underdo an accent; some will oversell it. (There’s nothing funnier than an actor overdoing an Irish accent.)

    In the same way, a judge strives for neutrality. He may overcorrect and grant latitude to a child molester. He may undercorrect and sentence people too harshly. Any judge is going to try to counter his biases in an effort to attain the goal of following the law. He may fail one way or the other, which would make him a bad judge, but he tries for the proper goal. The system works by approximating neutrality.

    Cindy, you’re calling for an abandonment of the goal of neutrality. I can’t see a reason why “free range” judges would necessarily favor the disadvantaged.

  • Clavos

    If Cindy is correct that SCOTUS Justices have always been biased for the “dominant [majority],” and this was bad, then the focus should be to eliminate bias, not exacerbate it by choosing still more biased judges.

    Two wrongs don’t make a right.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Except that justice and neutrality are not necessarily and always the same, Baronius. And as I said, we do have a mechanism in SCOTUS for dissenting opinions – sometimes the most astute of the bunch.

    Plus, Cindy may balk at what you esteem as “the traditional understanding of the judiciary.”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I don’t think Cindy can claim that outright – especially in light of the many monumental decisions which set the new tone – Brown vs. Board of Education, Roe vs Wade, etc.

  • Baronius

    Roger, neutrality and justice are not the same thing. But the creators of the law are tasked with making the law approximate justice, and the judges are supposed to apply the law neutrally. That’s the traditional understanding of the judiciary.

  • http://twitter.com/tolstoyscat Cindy

    I would like to add that would should try to transcend the limits of our particularistic histories in order to be able to think universally – for the humanity at large.

    Ah Roger. There it is in one sentence–the whole point of anarchism.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Cindy,

    Then we don’t have any disagreement except for one (though you wouldn’t regard it as) minor point. First and foremost, it’s a goal we as individuals should set for ourselves; and only then, keep your fingers crossed, can we hope to change society.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Baronius, #37;

    Point well taken in that “neutrality” and or “impartiality” figure in and are important elements of the justice concept. But I wouldn’t presume to effect the reduction. Plato’s and Socratic dialogues certainly go beyond. Plato’s “Laws” alone is a 300-some page book, and one can devote their entire lifetime to studying it.

  • Baronius

    Well, sure, no one would presume to effect the reduction. Such reduction-effect-presuming would be…ok, I have no idea what that means.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    One example of reduction: justice = neutrality.

  • http://twitter.com/tolstoyscat Cindy

    Bar, Clav,

    I think you are both missing my point.

    First of all, Sotomayor is striving for neutrality. It’s clear from her speech. She both states she is and also says that the history of judges who hail from marginalized groups won’t be reflected in any particular decision. Just that we should expect over time that these perspectives will have an effect. She is speaking as an answer to some of her predecessors who said that differences in gender, etc. will not and should not have an effect.

    The point is. To strive for neutrality is a good thing. She says as much. What she is saying is that the perspective of the marginalized will ALSO be in play, along with the other perspectives and that will have an effect, because we cannot remove the history from the white males, we must add the history of all the others. All of them “ideally”* trying to achieve that neutral judgment.

    *I say ideally because I truly believe they mostly don’t but just either convince themselves they do or lie to the rest of us about it.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Just as a good novelist, one should try to accommodate and consider every possible perspective. That’s what universal consciousness is about.

  • http://twitter.com/tolstoyscat Cindy

    Think of it this way. You’ve heard Dan(Miller) discuss the issue of torture and accountability from a legal perspective. There are many other lawyers who will agree with Dan. There are just as many who will not and will see other things.

    All of them see things or fail to see things and then they interpret what they see or fail to weight in what they don’t according to their own history.

    Otherwise either the opinions would all be the same or they are all not even trying to be neutral. Does this make any sense?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Good point: “we cannot remove the history from the white males.” Consequently, we can only hope to expand their myopic and particularistic vision by making them realize there are other histories as well – all comprising as it were the inglorious history of humankind.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Not to mention, they have vested interest in propagating the views they’re comfortable with. Hence the natural resistance to considering alternative/diverging viewpoints. Although in the “torture” case, there was a violation of the professional ethic of making no mention of the diverging view points – one solid reason, IMO, why Bush’s legal advisors are culpable at least on that one score.

  • http://twitter.com/tolstoyscat Cindy

    Roger,

    Regarding what you say in #36, I think I addressed that in comment #25. In my view and apparently in Sotomayor’s–people can and do adopt the viewpoint of the ‘other’. But it takes a great deal of intentional and dedicated effort. (Or the luck of accident.–my statement, not hers) It is not going to happen if they either don’t care to or are incapable of it.

    Brown v. Board of Ed. is discussed in Sotomayor’s speech, in fact, its a case that is reflected where she gives credit to the 9 judges in #25.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Not to mention, we’re all rational animals – operating by the simple means-to-an-end schema, and the idea of purpose is overriding most of the times. Which is to say, we are given to manipulating facts and opinions, are very selective in what we pick and choose, so long as it suits our purposes. The purpose defines thought and makes thought into an instrument for attaining the purpose.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “But it takes a great deal of intentional and dedicated effort.”

    Right. It rarely happens of its own accord, by some new and fresh spirit of benevolence or goodness on the part of anyone’s heart. It’s always the case that such advances have to be won tooth and nail. So the pressure must always be on.

  • http://twitter.com/tolstoyscat Cindy

    #51

    Roger,

    Is that a philosophical point? Is there someone I can read to find out more about that?

    Arihoodimes or someone! LOL (Sorry, my friend John says I sound like he expects Rush Limbaugh would if he were discussing philosophy.–I used to take my tests at school and I would get the ideas down right, but I’d have all the philosophers names with the wrong ideas.)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Not really. I think is more in the realm of human/animal psychology – a purpose driven animal. George Herbert Mead might be one source – “Mind, Self and Society” (a must-read). I consider it more or less as a fundamental tenet spanning over the behavior of organic life form.

    Come to think of it, I’d better look it up myself. I think it’s self-evident, however.

  • http://twitter.com/tolstoyscat Cindy

    48, 49, 51, 52

    I think we have arrived at seeing eye-to eye on this. About #49, I’d like to add, not only a vested interest, but an overt cultural imperative.

    For example, the idea that all people coming in to the country should put their own ways aside and learn our ways. Here is an example of that:

    Mark Krikorian

    (If you do notice the comment I made on the reply section, I’ll just explain that I was trying to mirror the style of Commrade Physioprof.)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Yes, I was right, Cindy. The paradigm comes from Mead. I guess it had stuck with me all those years.

  • http://twitter.com/tolstoyscat Cindy

    Thanks. It sounded like psychology. I though maybe I would develop an interest in philosophy.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    #55,

    “an overt cultural imperative … for example, the idea that all people coming in to the country should put their own ways aside and learn”

    Right, except that this view has long been challenged. I think even the idea of a “melting pot” did challenge it in some way (to the extend you weren’t supposed to deny you ethnicity but bring it into the fold). And now the idea of multiculturalism is the last nail in the coffin, I hope.

    So the voices on behalf of the cultural imperative are rarer and rarer, though not altogether extinct.

  • Baronius

    “…Otherwise either the opinions would all be the same or they are all not even trying to be neutral. Does this make any sense?”

    That depends. I don’t think most lawyers are trying to be neutral when they debate Bush’s interrogation policy. I don’t mean that as a slight. I don’t think economists are neutral when they debate tax policy. It’s the job of a judge, not a lawyer, to be neutral.

    Also, I’m sure that a lot of us in the current public debate haven’t reviewed all the facts, lawyers included. Presumably a judge would be presented with all relevent facts, if the counsels were doing their jobs.

    But lastly – and this is the big point that I think you’re ignoring – the judge’s thinking on the matter is ultimately determined not by his race or status, but by his judicial philosophy. That’s the means by which he weighs the meaning of the law, the relevence of prior rulings, and any issues of constitutionality. One can debate those things, and decisions will turn on that debate. If he weighs those things without bias, he’s a good judge. If not, he’s a bad one.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    They each have their virtues and proper domain.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Neutrality isn’t always a virtue – especially when you aim at presenting a strong argument.

    But in an ideal or perfect world – there should be (in most cases) something like only one right and just decision – unless a person is a relativist.