Party of no? When it comes to Supreme Court nominations, the GOP is a flock of baby lambs compared with their opposites on the Democratic side.The past two Democratic presidents have named three justices between them: Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. All glided painlessly to confirmation.

It’s certainly true that Breyer and Ginsburg were easily confirmed, what with their unanimous votes and all, but with Sotomayor your mileage may vary. Sotomayor was confirmed by a vote of 68-31, which is a wide enough margin, but with only 40 Republicans in the Senate at the time, that means 75% of the Senate Republican Caucus voted against her nomination. And this was after a relentless campaign of racial resentment against her nomination. So I suppose “painlessly” is a bit subjective there. Moving on:

Compare that with the mayhem inflicted on Republican choices. Two of President Nixon’s nominees were rejected by the Senate. Ditto for one of Ronald Reagan’s choices (another withdrew shortly after he was nominated). One of President George H.W. Bush’s choices, Clarence Thomas, was confirmed after a fight that still ranks as perhaps the most vicious in confirmation history.

This is all obviously true, but what’s interesting is that Frum doesn’t really expound on these nominees, and why they ran into trouble. Let’s examine this record of failure, shall we? Nixon’s first nominee to replace Abe Fortas on the court was Clement Haynsworth, who was immediately dogged with a record that was favorably disposed towards segregation and white supremacism. Many have argued that this was unfair, and that Haynsworth was rejected as payback for Republicans forcing Fortas off the Court, but the accusation was there nonetheless, and 55 Senators voted against confirming Haynsworth. Nixon’s next nominee was Harold Carswell, who was also dogged by accusations of racism, although these accusations were backed up by a speech Carswell had given years earlier in which he extolled his committment to…white supremacism. Carswell repudiated the speeches once he was nominated, but was still rejected by the Senate. That Nixon’s first two nominees were dogged by credible accusations of racism seems pretty relevant to this discussion. Moving on to Reagan we get Robert Bork, who was defeated with 58 Senators voting against him, including 6 Republicans, and Douglas Ginsburg, who withdrew his nomination after it was discovered he had lacked to indulge in some pot smoking in his Harvard offices with students. Again, something the seems worth mentioning for contextual purposes. Finally we get Thomas, who faced serious allegations of sexual harrassment, and yet was still confirmed by the Democratic Senate. When you actually look at these rejected nominees, their rejection seems much less remarkable than what Frum lets on. If anything, the remarkable thing to note is that Thomas was confirmed, and that Republicans are still so convinced the allegations against him were nothing but a vicious smear campaign.

But wait, there’s more:

It’s hard to argue that the difference is due to the superior quality of the Democratic choices. Ginsburg’s views were and are at least as controversial as Robert Bork’s. Not only Bork, but two other Republican nominees (Clement Haynsworth and Douglas Ginsburg) could show legal credentials that brightly outshone Sotomayor‘s.

I suppose Frum is technically sufficiently hedged with subjective language here but, pardon me, this is complete bullshit. I suppose it’s in the eye of the beholder and all that, but frankly I’d love to see Frum try to justify his claim that Ginsburg is “at least as controversial” as Bork in her views. It’s just preposterous on the face of it, especially considering that Ginsburg was nominated at a time when the legacies of bona fide liberal justices like Marshall and Blackmun were still fresh. Douglas Ginsburg certainly had impeccable qualifications, but again, he withdrew amidst revelations of drug related impropriety. And that’s to say nothing of Bork’s role in the infamous Saturday Night Massacre. As for a Haynsworth and Sotomayor, I suppose this is subjective, again, but unless Frum has a compelling argument to back this up, I’m afraid I’m going to have to call bullshit again. Haynsworth went to Harvard Law, was first appointed to the federal bench in 1957, when President Eisenhower appointed him to the 4th Circuit, and then nominated for the Supreme Court in 1970. Sotomayor graduated summa cum laude from Princeton, was appointed to the District Court in 1992 and then the 1st Circuit in 1998, before being nominated for the Supreme Court in 2009. So Sotomayor has an academic profile that stacks up against pretty much everyone, and had a longer tenure on the federal bench before being nominated to the Supreme Court. So while I suppose it’s possible Frum has some metric by which Haynsworth is more impressive than Sotomayor, the idea that Sotomayor’s formal credentials are “brightly outshone” by Haynsworth’s is just laughable.

The rest of the column is mostly boilerplate stuff that I just don’t agree with in general, and even if it were less objectionable, the highly misleading, inappropriately vague, and laughable-in-parts opening would still damn the entire column. Thus, while it doesn’t really amount to much in the grand scheme of things, it’s worth keeping in mind that Frum is still a Bushie at heart, and still perfectly dishonest when it suits his ends, no matter how many times he criticizes Rush Limbaugh.

Technorati Tags: David Frum

You can’t make this stuff up:

In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska. He spent the next 14 years of his life behind bars. Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket. Allowing Osburne to prove—or disprove–his claim of innocence will cost Alaska literally nothing.

Nevertheless, the Supreme Court held today in a 5-4 decision by Chief Justice Roberts that Osburne is out of luck. Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit. Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

I was going to compare the decision to Dred Scott, but that’s not really fair; Dred Scott was probably decided correctly given the law of the day. But there really isn’t anyway to defend this decision, and I’d be very interested in seeing how someone tried to defend it. Scott Lemieux seems to classify it as a case of federalism run amok but, assuming some level of seriousness by the Justices, I’m really not sure how that could be the case. The 14th amendment pretty clearly extends the due process requirement to the states, which would trump any “state’s rights” claim, it would seem. Of course, it’s entirely possible that the Justices decided to just ignore the plain text (ignoring the ver existence of the 9th amendment is a cornerstone of conservative legal theory after all), or that the conservative members onthe court simply don’t think due process includes the right to present exonerating evidence in court.

It seems to me, however, that this is probably just an isolated case, and the Justices are primarily concerned with protecting the image of the criminal justice system. If the decision is absurd (and it is), it’s really not that much more absurd than the nature of the system itself, which prizes process over truth, and then tilts heavily in its own favor upon conviction.

Larison goes to the well of the weakest of “strict constructionist” tropes:

The amendment process is a somewhat indirectly democratic means to make changes to that system. This makes the amendment process a slow, drawn-out, but nonetheless democratic remedy to perceived flaws in the system. The amendment process is extremely slow and arduous because there was once a quaint idea that dramatic changes in the power and scope of government could and should only be achieved through this process. Likewise, there was an assumption that there needed to be numerous obstacles to amending the fundamental law to make it more difficult for majoritarian tyrannies to strip people of their constitutional protections. Once the Court began discovering rights, or, if we want to be less pejorative, extending the protections of existing rights in new ways, what had once been within the power of state legislatures and electorates to regulate as they saw fit was placed behind a series of huge obstacles that cannot be overcome without the building up of super-majorities throughout the entire country in favor of a certain position. That would all be well enough if the right in question were not so constitutionally dubious and morally outrageous, since this process is supposed to be extremely difficult and it is supposed to require the support of most of the people, but the so-called right we’re talking about is both of these things.

The key point here is the notion of “discovering rights” which, as Larison’s admission that the phrase is a bit pejorative belies, is the idea that such rights are not, in fact, protected by the Constitution. It’s an argument you’ve probably heard any random talk radio host make at some point or another, something along the lines of “show me where the Constitution says anything about a right to privacy.” Of course, excepting the 4th amendments protections against unwarranted search and seizure, the Constitution doesn’t say anything about privacy, or abortion, or owning a pet, or being able to choose which brand of gum you want to purchase. But there is the 9th amendment, which says, and I quote, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, one of the amendments in the Bill of Rights says in no uncertain terms that there are rights held by the people under the Constitution that are not specifically mentioned in the Constitution. But it doesn’t give any idea as to what those might be, which makes it hard to argue anything concretely under the 9th amendment. I can make the argument that there’s a right to anything I want there to be a right to under the 9th amendment, and there’s no way to definitively argue against me. At the same time, there’s no way to prove my affirmative argument either. You can make a fairly reasonable argument that this fact makes such a system inoperable in practice, since the only way to determine these questions is by the whim of the judiciary, or society, at the moment, which is anathema to the general theory of written law, and that a standard f only respecting specifically enumerated rights is more desireable from a social order standpoint, but doing so requires the person making the argument to wholly ignore the plain text of the 9th amendment, which obviously doesn’t really square with the way ”strict constructionism” is commonly presented.

The bright-line-rules standard preferred by Scalia and Thomas, outlined most recently yesterday in Caperton, fails in similar ways. Roberts’s dissent, as Paul Campos notes, basically argues that no standards are better than vaguely defined “arbitrary” standards, but again, this pays no attention to the structuring of the Constitution, which at various points resorts to undefined subjective  language. The 8th amendment, for example, simply states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” How should we define “excessive,” “cruel,” or “unusual?” The Constitution doesn’t say. And yet it explicitly bans such sanctions. Again, it might not be as cut-and-dry as the Scalias and Thomases of the world would like things to be, but it is in the Constitution.  

On the latter point, Larison’s logic simply doesn’t follow. If “the right in question is so Constitutionally dubiousand morally outrageous” as Larison accepts abortion rights are as a given, then we should expect that it would be easier to cultivate a super-majority in these cases than in other, less egregious, ones. That it isn’t suggests that reality is not quite what the right imagines it to be.

You’ve really got to love that the Roberts-Scalia-Thomas-Alito wing of the Supreme Court is so insulated from any sort of reprisal that they can actually cast a vote declaring, in effect, that buying a vote on a state supreme court to influence a pending case isn’t a problem. At least not if it’s a corporation doing it.

What’s really galling here is how obvious the case is; even if you don’t assume there was anything nefarious going on, that one of the parties in a case gave one of the justices a $3 million contribution is a conflict of interest any way you slice it, and the justice in question should have recused himself. There’s no credible argument against that, and obvisouly, none of the court’s conservatives made any.

Shelby Steele has a column in today’s Wall Street Journal that is, amazingly, quite possibly the single most pathetic thing Steele has ever written. Adam Serwer says that Steele has gotten “predictable,” but I’m not sure that’s right. For one thing, Steele has always been predictable. He’s only got one trick, after all. No, at this point Steele has just become dishonest. If before you could make the case that he was being obtuse or making problematic, broad based claims, reading this effort, there’s simply no way to argue Steele doesn’t understand exactly what he’s doing in getting basic facts wrong, things he’s gotten wrong before.

For example, Steele continues to downplay President Obama with the same rhetoric he was using before the election, even implying that he was correct then:

I have called Mr. Obama a bound man because he cannot win white support without bargaining and he cannot maintain minority support without playing the very identity politics that injure him with whites. The latter form of politics is grounded in being what I call a challenger — i.e., someone who presumes that whites are racist until they prove otherwise by granting preferences of some kind to minorities. Whites quietly seethe at challengers like Jesse Jackson who use the moral authority of their race’s historic grievance to muscle for preferential treatment. Mr. Obama has been loved precisely because he was an anti-Jackson, a bargainer who grants them innocence before asking for their support.

Now, the most obvious intellectual problem here is that Steele doesn’t note that the sub-title to his “bound man” critique included a cliam that Obama “can’t win,” which would seem to be significantly undermined by the fact that Obama, you know, won. And what’s more, Steele isn’t even making an explanation as to why he was really right, even though he seemed to be spectacularly wrong, he’s just disappearing the fact altogether. Secondly, Steele is continuing the rhetoric from his post-election column that Obama somehow seduced white people into voting for him, even though Obama didn’t improve much on the level of support John Kerry or Al Gore enjoyed among white voters. Again, it’s not that Steele is “wrong,” it’s that he’s explaining why something happened, even though it didn’t happen. And he’s just pretending no one ever pointed out that he was just wrong about the facts of the matter (which he might believe, since it really wouldn’t make sense for Steele to read criticism of his parlor act, would it?).

Even more dishonestly, Steele rips Sotomayor’s “wise Latina” remark out of context even more egregiously than most other conservatives have:

Throughout her career Judge Sotomayor has demonstrated a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy, as in 2001 when she said in a lecture at the University of California, Berkeley, “a wise Latina woman . . . would more often than not reach a better conclusion [as a judge] than a white male.”

Steele doesn’t even note that the broader context of the speech related to racial discrimination cases, he eliminates Sotomayor’s reference to the differing experiences of people of different identity groups. So yes, in this context, you certainly could come away thinking that Sotomayor was making the claim that Latina women are inherently superior to white men, but this isn’t Sotomayor’s quote. It’s an edited snippet of the quote that drastically changes the meaning of the remark. Steele isn’t even attempting to provide an accurate depiction of Sotomayor’s opinion, he’s hacking her words up in such a way as to change what she said, and he knows it. So far, this is the first time I’ve seen someone of any political persuasion edit out the “experiences” part of the quote, and it’s not as though this hasn’t been remarked upon heavily. This is just intellectual dishonesty of the highest form, which shouldn’t really surprise anyone who’s familiar with the bulk of Steele’s work, but what’s really striking is the degree to which Shelby isn’t even trying to hide it anymore. It’s right out there, and it’s extremely lazy in its construction.

Of course, this is still Shelby Steele, so the cheap racism is still there because, well, that’s what Shelby Steele exists to provide:

The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit. (Here, too, is the ugly faithlessness in minority merit that always underlies such maneuverings.) Mr. Obama is promising one thing and practicing another, using his interracial background to suggest an America delivered from racial corruption even as he practices a crude form of racial patronage. From America’s first black president, and a man promising the “new,” we get a Supreme Court nomination that is both unoriginal and hackneyed.

But of course, Steele doesn’t actually demonstrate that Sotomayor lacks individual merit. He predictably brings up the Ricci case but, also predictably, does so without making any mention of the relevant statutes or precedent. Like every other conservative commentary on the case, the decision is simply taken to be wrong for the simple reason that conservatives don’t approve of the outcome. But other than that, there’s nothing. Steele doesn’t make the case that Sotomayor lacks formal qualifications (because that would be too absurd even for him), he doesn’t dig through her career to find any sort of example that would show her to be unqualified in a substantive manner, in part because that’s not what Shelby Steele’s work is built around. Rather, because Sotomayor is a woman and a racial minority, it must be taken for granted that affirmative action is at work he. An hispanic female is ipso facto less qualified than a white man, the same way any other minority is in Shelby Steele’s world. Minorities in general, and black people in particular, don’t get ahead in that world on their own merits, unless, of course, they’re conservatives. Someone ought to ask Shelby Steele what he thinks of Michael Steele, and whether or not the latter would have his current position if the Democrats hadn’t elected the nation’s first black President.

Technorati Tags: race, Racist Wankers, Shelby Steele, Sonia Sotomayor

I will confess, the focus on race in Sonia Sotomayor’s SCOTUS nomination has left me comparing her to Clarence Thomas more than once, so today’s article on the topic in the New York Times was of high interest to me. But the article, as one would expect from the Times, leaves quite a bit to be desired. The conclusion is nauseating in the way it regurgitates right-wing conventional wisdom about both judges, and the particulars leave a lot of relevant information out, especially about Thomas.

There’s no shortage of references to the fact that Thomas purportedly “abhors affirmative action,” but what’s interesting to me is the way these accounts significantly underplay the central role race has always played in Thomas’s rise. There’s the obvious connection made; Thomas was a conservative black man appointed to replace the court’s first, and only, black justice, and would probably not have gotten that appointment were he not a black man. I think that’s a fairly banal observation given the context of the nomination, and I don’t think anyone who denies it ought to be taken seriously. And while I tend to think that people denigrating Thomas as not smart are being somewhat unfair, it is true that his academic accomplishments are objectively below the apparent standards of the contemporary court. But more striking than that is the way most accounts ignore Thomas’s professional history before being nominated to the court. We’re not talking about someone who spent a decade or so on the bench, or someone who was involved at the pinnacle of academia. Thomas was appointed Assistant Secretary for Civil Rights at the Department of Education in 1981, and from there moved on to chair the Equal Employment Opportunity Council before being appointed to the Circuit court about a year before his appointment to the Supreme Court. He is, in other words, someone whose professional life for the past 3 decades has been almost totally defined by his race. Moreover, it’s been defined that way by other. When Reagan-Bush needed a black man for a spot, they turned to Clarence Thomas, even for a job he wasn’t particularly qualified for. To be fair to Thomas, I suspect I would be deeply resentful of that as well.

But it seems to me that the problem with Thomas is that he’s projected his experience on to everyone else, and Sotomayor is, in many ways, his antithesis. Sotomayor may have benefitted from affirmative action in being admitted to Princeton, but once there she graduated summa cum laude before going on to graduate at the top of her Yale Law class. Rather than becoming a token minority in race-related positions in a conservative administration, Sotomayor went to work as an Assistant District Attorney in New York City, then into private practice, before being appointed to the District Court at roughly the same time Thomas was appointed to the Circuit Court. Unlike Thomas, however, who was quickly moved up to the Supreme Court, Bill Clinton picked two other people to nominate for the Supreme bench, and now that Sotomayor is being elevated to the highest court, her formal qualifications are more or less beyond question, a stark contrast with Thomas’s nomination.

I could write a much longer post psycho-analyzing Clarence Thomas, and maybe I will, but for now, I’ll just say that the comparison between the two nominees is very interesting, but not if you whitewash Thomas’s side of the story.

Technorati Tags: Clarence Thomas, race, Sonia Sotomayor

There’s a lot to agree with in this post from Larison, but I want to take issue with this:

As for the other point, it is true that refraining from making baseless charges of racism against Sotomayor will not stop other baseless attacks against conservatives from being made. However, it does seem all but certain that making such baseless charges one of the main lines of attack against Sotomayor will make it far more likely that even those conservative arguments that were once given the benefit of the doubt will be willfully misread in just the same way that critics seem to have been misreading Sotomayor’s statements.

“Willful misreading” is one way to put it, I suppose, but it seems to me that a much more logical way to look at it is that once you develop a track record of playing to racist sentiments or employing racial tropes, you lose the right to be given the benefit of the doubt in the future, because you have a track record. If John Bolton or some other neoconservative hawk writes a column employing hardline rhetoric against, say, North Korea, but without explicitly calling for military action, it’s probably still pretty fair to assume they would be in favor of such a course, because they’ve got a track record of supporting military action against states who take courses they don’t approve of. All of which basically says two things; first, as Yglesias is fond of pointing out, conservatives are much more concerned about accusations of racism than they are with actual instances of racism and, secondly, if you don’t want people to think that you’re a racist, or that you’re comfortable making appeals to racialist sentiment, then maybe you shouldn’t traffic in the sort of rhetoric that calls a summa cum laude graduate of Princeton the recipient of “preferential treatment” based on their race and gender or disparage a Supreme Court nominee with more prior judicial experience than anyone currently sitting on the court an “affirmative action hire.”

Just a suggestion.

Technorati Tags: racism, Sonia Sotomayor