ChickenDems and the SCOTUS

Sargent: Report: Reid Bucked Obama On Gitmo For Fear Of Looking “Liberal”

Adam Nagourney reports this morning on the thinking of Harry Reid, suggesting that Reid dramatically broke with President Obama’s policy of closing Guantanamo Bay because he’s worried that Republicans trying to snatch his Senate seat next year will paint him as too liberal:

With an eye back home, Mr. Reid has taken increasing care not to be identified with some of the more liberal leaders in his party. Republicans say that whomever they run against him, a central part of the campaign will be to link him with Democratic figures like Representative Nancy Pelosi of California, the speaker of the House…

In a display of self-preservation, he also broke with the administration in leading his caucus against providing the money that the president had sought to close the detention center at Guantánamo Bay, Cuba.

The sourcing here is murky. But given Reid’s repetition of the mantra that “we will never allow terrorists to be released in the United States,” it seems likely that this is exactly the calculation Reid has made. It would be really interesting to see Nevada residents polled on how they feel about the closing of Guantanamo and the relocation of detainees in the U.S.

If Nagourney is right about Reid’s thinking, the Republicans don’t even have a candidate to run against him yet, but they’ve already gotten Reid to adopt a defensive crouch. Clearly, last November’s victory did little to impair the unerring instinct Congressional Dems have for letting Republicans set the terms of the debate on key national security issues.

So how will the Chicken-Dems react to Obama's pick for SCOTUS? After all, as atrios says: Not Even Watching The Teevee

But I bet Sotomayor is an extremely liberal activist judge.

...and of course Drudge is highlighting TNR's "Sotomayor is a stupid bitch according to my anonymous friends" article.

Turned the teevee on..."liberal political activist in the first order." According to a former clerk for Clarence Thomas. President Gingrich has not weighed in yet.

• from the comments at Political Animal:
  

  Now, this is odd. Politico calls her a "Latina single mother."

  http://www.politico.com/news/stories/0509/22962.html#ixzz0GcPpb5Tb&A

  Given that articles have noted that she has no children and therefore sees her clerks as her children, where did the reporters get that idea? It seems like they have internalized some stereotypes about minority women.

  Posted by: Amy on May 26, 2009 at 9:28 AM

Sully: Greenwald 1, Rosen 0

It's Sotomayor. And Obama's Hispanic approval levels are already around 85 percent.

• Greenwald:

  There are many vital issues that Sotomayor should be asked about, obviously including her views on executive power limits, which -- as Charlie Savage noted this weekend -- are largely unknown. One's view of her selection should be shaped by things that are as yet unknown. But judging strictly from what is known, Obama deserves substantial credit for this choice. There were choices available to him that would have been safer among the Respectable Intellectual Center (Diane Wood) and among the Right (Elena Kagan). At his best, Obama ignores and is even willing to act contrary to the standard establishment Washington voices and mentality that have corrupted our political culture for so long. His choice of Sotomayor is a prime example of his doing exactly that, and for that reason alone, ought to be commended.

Christy Hardin Smith:

Suddenly, the Ben Nelson fishing expedition on Fox News over the weekend comes into sharper focus: he's making a move while his vote still has cash value. And before one of the other "floaters" cuts a deal of their own.

But, for now, let's see what President Obama has to say...and whether they send Jon Kyl or John Cornyn out to make the Federalist Society case in rebuttal, or someone else entirely. Because I can't quite agree with Tom at SCOTUSblog that the GOP will give Sotomayor any sort of pass.

I'm bracing myself for the inevitable wave of shitstorm kabuki. And I hope the WH has planned for the same.

Think Progress: Obama To Name Sonia Sotomayor As His Supreme Court Nominee

This morning, President Obama is expected to name Sonia Sotomayor, currently a federal judge for the U.S. Court of Appeals for the Second Circuit, as his Supreme Court nominee. She is the first Hispanic nominee for the high court, and if chosen, would become just the third woman to serve. President George H.W. Bush nominated her for her previous post as a judge for the U.S. District Court for the Southern District of New York.

Born to parents who came from Puerto Rico, Sotomayor grew up in a Bronx housing project. In addition to her 16 years of court experience and her time as editor of the Yale Law Review, Sotomayor also “spent five years as a prosecutor with the Manhattan District Attorney, then developed her substantial civil practice as a commercial litigator.” However, during her “wrinkle-free confirmation hearing before the Senate Judiciary Committee” in 1992, senators focused on her substantial pro bono activities:

For 12 years she was a top policy maker on the board of the Puerto Rican Legal Defense and Education Fund. She was also on the board of the State of New York Mortgage Agency, where she helped provide mortgage insurance coverage to low-income housing and AIDS hospices. In her leisure time she became a founding member of the New York City Campaign Finance Board, which distributes public money for city campaigns.

Last week, the well-respected SCOTUS Blog underscored the historic nature of a Sotomayor nomination and warned Republicans that it will be “hopeless” to try to block her nomination. Politically, such attacks risk “exacting a very significant political cost among Hispanics and independent voters generally.” A look at some of the likely conservative claims:

Opponents’ first claim — likely stated obliquely and only on background – will be that Judge Sotomayor is not smart enough for the job. This is a critical ground for the White House to capture. … The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices. [...]

The second claim — and this one will be front and center — will be the classic resort to ideology: that Judge Sotomayor is a liberal ideologue and “judicial activist.” … There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left. Our surveys of her opinions put her in essentially the same ideological position as Justice Souter. [...]

The third claim – related to the second – will be that Judge Sotomayor is unprincipled or dismissive of positions with which she disagrees. … There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.

This morning, Karl Rove was on Fox News getting started on the attacks, calling Sotomayor an “unabashed liberal.” Watch it:

Update This morning on the Corner, Wendy Long uses 9/11 to attack Sotomayor: "On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas."

• Yglesias: On the Ricci Case
  

  It appears that Sonia Sotomayor’s participation in a panel that ruled against the plaintiff in the Ricci case related to fire department promotion policies in New Haven will be at the center of the case against her. Under the circumstances, it might be useful for folks to familiarize themselves with the facts. As Doug Kendall and Dahlia Lithwick explain:

  What does Ricci’s dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That’s because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

  When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci’s specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

  The point they’re making is that empathy-hating conservatives don’t seem to have a problem playing the empathy card when they think doing so will help them get results that they like.

• Greg Sargent adds:

  First question: How do Republicans oppose the first potential Hispanic Supreme Court justice, given their much-vaunted outreach to Latinos in 2006 and 2008, the losses the GOP has suffered with this group given the party’s immigration stands, and the party’s desperate need to expand racially and demographically among such groups? The optics of GOP opposition here likely would look awful.

• Wreckingballreport: Obama Picks Sonia Sotomayor for Supreme Court, GOP Readies List of Confirmation Questions
  

President Obama is set to nominate federal appeals court judge Sonia Sotomayor to the vacant spot on the Supreme Court left by the outgoing Justice David Souter. Sotomayor would be the first hispanic judge on the high court, and she also adds another female voice to the bench, and she… um… OK - so we don’t actually know much else about her.

Wikipedia tells us that she once intervened in a Major League Baseball strike, but it also told us that she likes to have to tea with Osama Bin Laden and William Ayers every Tuesday, and that she’s rumored to be on the next season of Dancing with the Stars.

Fortunately, we’ll soon know plenty about Sonia Sotomayor, thanks to our dignified confirmation process, and rest assured that none of it will have to do with her judgment or qualifications for the bench. In fact, here’s a leaked list of some of the questions GOP lawmakers have been preparing:

So, you’re Puerto Rican, huh? That’s pretty close to Cuba, isn’t it? Isn’t it? That’s a yes or no question.

Have you ever practiced any of that crazy voodoo stuff you’ve got down there?

But as far as you know, it’s completely possible that somebody has put like a kind of weird voodoo hex on you, right? I mean, it’s possible that they’ve been putting pins in a doll that looks like you to control your judgment? Can you say without a doubt that you know that hasn’t happened?

Have you ever conceived a child with a gay illegal immigrant that was later aborted?

Has your husband ever actually said to you, the exact words “I am not a gay illegal immigrant?”

So you can’t really be 100 percent sure then?

When you watch The View, would you say you’re usually on Joy Behar’s side? You know, like you and your friends say mean things every time the blonde chick speaks?

What do you think is a more strange name for a Supreme Court justice, Sotomayor or Bork?

Benen: ANTICIPATING ONE OF THE TALKING POINTS....

We're still about 15 minutes away from the formal introduction of Judge Sonia Sotomayor as the president's nominee for the Supreme Court, but one of the central criticisms against her in recent weeks is likely to come up again and again during the confirmation process.

There's a video of Sotomayor speaking at Duke University Law School four years ago, in which the judge said appeals courts are "where policy is made." Conservative activists and Republican senators have seized on those four words as evidence of "judicial activism." After all, they argue, "policy" shouldn't be "made" in the courts; it should come from the legislative process. To do otherwise, the theory goes, is to "legislate from the bench."

Reiterating a post from a few weeks ago, it's worth knocking this down. A.L. did a nice job explaining why the argument is misguided.

The entire video clip can be found here. The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear.... But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.

Sotomayor will no doubt face all kinds of criticisms, and some may be more persuasive than others. This one is just silly.

Aravosis: Remember, Republicans are viscerally opposed to filibustering judicial nominees

Media Matters Action Network has compiled videos of various top Republicans saying that filibustering judicial nominees is unconstitutional. Let's see if they still feel that way. Here's GOP leader Mitch McConnell:



MMAN has a lot more videos, check them out at DemocracyOrHypocrisy.org

Aravosis: At first blush, it's a brilliant choice

Chris Cillizza at the Washington Post notes what's most important about today's Supreme Court nomination:

Republican strategists have fretted openly that if their party can't find a way to make Hispanics a swing group electorally -- as President George W. Bush did in 2004 when he won 44 percent of the Latino vote -- they may find themselves in a permanent minority status. Bridging that gap between the GOP and the Hispanic community just got a lot more difficult.

It's a brilliant move by the Obama people. A very strategic, calculated move. A woman and, more importantly, a Latina.

Now let's see how well the Obama people, notoriously less than interested in working with others to achieve their goals, run this campaign. The stimulus battle was a disaster until Obama snatched victory from the jaws of the defeat - up until things went horribly wrong, there wasn't much interest in having "outsiders" help (for example, the Obama team never asked the blogs to help at all, even when things did go wrong). Gitmo is another example. Obama makes a grand gesture, about closing Gitmo, but no one does the leg work to turn the President's policy into law, so the Senate decimates Obama's proposal. Will the same thing that happened during the campaign happen during this nomination battle? Namely, that the Obama people, far too often, like to go it alone, thinking they don't need friends and allies to achieve their goals.

Time will tell.

Sudbay: Get ready for an onslaught of right wing attacks on Sotomayor -- aided and abetted by the traditional media

Media Matters has been following the anti-Sotomayor whisper campaign that began shortly after her name was first mentioned. No surprise, but most of the pundits dutifully regurgitated the falsehoods. In early May, Politico's Mike Allen was already on t.v. giving us the rundown on the GOP's talking points.

This is going to be a battle. The right wingers are geared up and well funded. And, they've got their friends in the traditional media already spewing their rhetoric. Keep in mind that cable news wants this to be a battle. It's good for ratings. (And, let's face it, most of the very high paid media types in D.C. have absolutely no capacity to understand Sotomayor's amazing life story.) Today, however, as much as CNN is trying to stir the pot, their Republican analyst, Ed Rollins, said this will turn out to be a "brilliant choice."

Conservatives have been laying the groundwork for a couple of weeks, even though we didn't even have a nominee -- and, as noted, indoctrinating the talking heads. The attacks have already started:

Conservative groups reacted with sharp criticism on Tuesday morning. “Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network. “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.”

The Obama team already knew that Sotomayor would face right wing attacks, but the president picked her anyway. Good for him.

The President wants this nomination confirmed by the August recess. The Senate Republicans will want to drag it out as a way to rally their troops. The Democrats in the Senate had better deliver.

Beutler (TPM): White House Armed With Talking Points For Sotomayor Fight--Evoke Her 'Empathy'

The nomination of Sonia Sotomayor isn't even official yet, and already, conservatives are revving up their attack engines.

But the White House is prepared. And, interestingly, they're doubling down on the descriptions of Sotomayor's career and character that conservatives object to the most. "Sonia Sotomayor...brings not only brilliance in the law but a common sense understanding of how the law practically works."

According to the memo, "Judge Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine and a keen awareness of the law's impact on everyday life."

The language is reminiscent of the speech Obama gave after the news of Justice David Souter's retirement broke, when he declared that he wanted an empathic nominee, with an understanding of how the law effects regular people. Almost immediately conservatives went on a politically questionable attack against 'empathy' as a proxy for their usual argument that judges should not be "activists."

The full memo appears below the fold.

TALKING POINTS:

The President's Approach:

· The President believes that selecting someone to replace Justice Souter is one of his most serious responsibilities. He vowed to seek someone with a sharp and independent mind, and a record of excellence and integrity. As a former constitutional law professor, he believes it paramount to select someone who rejects ideology and shares his deep respect for the Constitutional values on which this nation was founded.

· But, as the President has made clear, upholding those constitutional values requires more than just the intellectual ability to apply a legal rule to a set of facts. It requires a common sense understanding of how laws affect the daily realities of people's lives.

Judge Sonia Sotomayor:

* Judge Sonia Sotomayor embodies those qualities -- as someone who brings not only brilliance in the law but a common sense understanding of how the law practically works.

* Her American story and three decade career in nearly every aspect of the law provide Judge Sotomayor with unique qualifications to be the next Supreme Court justice.

· She has been hailed as "a role model of aspiration, discipline, commitment, intellectual prowess and integrity" for her ascent to the federal bench from an upbringing in a South Bronx housing project, and as "one of the ablest federal judges currently sitting" for her thoughtful opinions.

Judge Sotomayor's Background:

* Born to a Puerto Rican family, Judge Sotomayor grew up in a public housing project in the South Bronx. Driven by her mother's belief in the power of education and her own indefatigable work ethic, Sotomayor excelled in school, graduating as valedictorian of her high school class and winning a scholarship to Princeton University. After graduating summa cum laude, and Phi Beta Kappa, she entered Yale Law School, where she served as an editor of the Yale Law Journal.

* Out of law school, Judge Sotomayor became an Assistant District Attorney in Manhattan, where she tried dozens of serious criminal cases over five years and was known as a "fearless and effective prosecutor."

* She entered private practice in 1984, and worked as an international corporate litigator handling cases involving everything from intellectual property to banking, real estate and contract law.

Judge Sotomayor's Judicial Track Record

* If confirmed for the Supreme Court, Judge Sotomayor would bring more federal judicial experience to the Supreme Court than any justice in 100 years, and more overall judicial experience than anyone confirmed for the Court in the past 70 years. She has been a big-city prosecutor and a corporate litigator, a federal trial judge on the U.S. District Court, and an appellate judge on the Second Circuit Court of Appeals.

* Before she was promoted to the Second Circuit by President Clinton in 1998, she was appointed to the District Court for the Southern District of New York by President George H.W. Bush - a show of bipartisan support that proves good judging transcends political party.

* As a trial judge, she earned a reputation as a sharp and fearless jurist who does not let powerful interests bully her into departing from the rule of law. In 1995, Judge Sotomayor ended the baseball strike by issuing an injunction against major league baseball owners.

* In 1998, Judge Sotomayor became the first Latina to serve on the U.S. Court of Appeals for the Second Circuit, one of the most demanding circuits in the country. She has participated in over 3000 panel decisions and authored roughly 400 opinions, handling difficult issues of constitutional law, to complex procedural matters, to lawsuits involving complicated business organizations.

* Judge Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine and a keen awareness of the law's impact on everyday life. She understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.

* Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them. In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time

* Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit, said "Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her. "

The Confirmation Process

* The President is committed to working with the Senate to ensure an orderly and civil confirmation process. The average number of days between nomination and confirmation for the last five Supreme Court justices is 72 days. Justice Roberts was confirmed 72 days after his nomination, and Justice Ginsburg was confirmed in just 50 days.

* The President believes it is important for the Senate to vote on Judge Sotomayor's confirmation before the August recess - more than two and a half months away -- to allow the new Justice time to prepare and participate when the Court confers in September and selects cases to be heard this year.

Benen: 'A NEAR LOCK'...

Whether you find Mark Halperin's analysis helpful or not, it's fair to say he has a sense of what the political establishment is thinking. And this morning, Halperin described Judge Sonia Sotomayor as "a near lock," not only for confirmation, but for an easy confirmation.

Assuming nothing surfaces in Sotomayor's background that causes controversy, expect her to be seated when the court opens for its new term in October, after thorough confirmation hearings that will seem more like a lovefest than a legal firing squad. By both design and luck, Obama faces a Supreme Court-pick process that has been drained of the tension and combat that has characterized such moments in the past several decades. [...]

Obama has chosen a mainstream progressive, rather than a wild-eyed liberal. And he has chosen a rags-to-riches Hispanic woman. Her life story is inspirational -- a political consultant's dream. Since she is certain to be confirmed, there are plenty of smart conservatives who will, by midday Tuesday, have done the political cost-benefit analysis: at a time when Republicans are trying to demonstrate that their party can reach beyond rich white men, what mileage is there in doing anything but celebrating such a historic choice? [...]

[U]nless Administration background checkers failed to find what they needed to know about Sotomayor's history, those spoiling for a battle are not going to get one.

I mention this in large part because Halperin's take often reflects, if not helps dictate, the conventional wisdom among pundits and the media establishment. If he's saying this nomination is already a done deal, it makes it that much more difficult to wage an effective campaign against Sotomayor.

Greg Sargent asked this morning, "How do Republicans oppose the first potential Hispanic Supreme Court justice, given their much-vaunted outreach to Latinos in 2006 and 2008, the losses the GOP has suffered with this group given the party's immigration stands, and the party's desperate need to expand racially and demographically among such groups?"

Given Sotomayor's experience, qualifications, and personal background, the answer seems to be, "They don't."