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Specter actually likes Sotomayor

Not going to lie: I fully expected Arlen Specter to at least be wiggly on the topic of President Obama’s Supreme Court pick, all the better to prove his “independence.” Lo and behold, though, it appears our senior senator is actually on board … more or less:

I applaud the nomination of Judge Sotomayor to the Supreme Court.  Her confirmation would add needed diversity in two ways: the first Hispanic and the third woman to serve on the high court.  While her record suggests excellent educational and professional qualifications, now it is up to the Senate to discharge its constitutional duty for a full and fair confirmation process.

Sotomayor for SCOTUS, the early reaction

New York Times:

President Obama has decided to nominate the federal appeals judge Sonia Sotomayor to the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice, officials said Tuesday.

The decision, to be announced Tuesday morning, will be Mr. Obama’s first selection to the Supreme Court and could trigger a struggle with Senate Republicans who have indicated they may oppose the nomination. But Democrats control nearly the 60 votes necessary to choke off a filibuster and even Republicans said they have little hope of blocking confirmation barring unforeseen revelation.

Also from the Times: Sotomayor’s Notable Court Opinions and Articles:

Kathryn Jean Lopez:

You’d think the president would have put at least a day between Memorial Day and nominating a judge to the Supreme Court who would bury the claims of firefighters — men who put their lives on the line in service for others — on the altar of political correctness.

Atrios:

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.

The Weekly Standard:

The boss, from his Blackberry:

“Where policy is made.”

That’s how, in 2005, reported Supreme Court pick Sonia Sotomayor characterized the Court of Appeals, where she now serves. It’s undoubtedly even truer, in her eyes, about the Supreme Court. The debate over her confirmation could be an interesting “teaching moment”–a politically important teaching moment–for constitutionalists who would beg to differ from Sotomayor’s vision of the appropriate role of the federal judiciary.

Ta-Nehisi Coates:

But one thing that’s clear to me, is that this notion that Obama won’t fight, really doesn’t hold up. He sometimes doesn’t fight for things that we want him to fight for. But he isn’t afraid. I don’t know if it’s because of that Rosen piece, or what, but my initial impression is that this is very good fight to engage–politically and otherwise.

Back to that first point, Obama is tactical as always–I just don’t think Jeff Sessions, with his history, really wants it with a Puerto-Rican woman who worked her way up from the projects and went on to be summa cum laude at Princeton, and went on to Yale Law. Not to mention you have the first Latina Supreme Court judge, appointed by the first black president. Just on the crass politics, it ain’t a good look.

Steve Benen:

This month, as it appeared increasingly likely that Sotomayor would be Obama’s nominee, the judge has been the target of a whisper campaign, and many leading far-right activists — including Limbaugh and Fox News personalities — started the offensive against her weeks ago.

For what it’s worth, Sen. Orrin Hatch (R-Utah) said earlier this month that Sotomayor would face stiff GOP opposition if she were nominated for the high court. Since that would be true of any Obama nominee, it hardly matters.

Today’s torture post: Why does the Inky keep giving op-ed space to John Yoo?

We realize that the op-ed pages of the Philadelphia Inquirer are never going to share our politics. We’re ok with that. Really. Diversity is the spice of life and all that.

Still, we wonder why the Inky keeps giving op-ed space to John Yoo. Yoo, of course, is the Bush Administration lawyer who wrote many of the memos giving legal cover to the president for acts of torture against terror suspects. He left the administration to become a law professor at Berkeley, which supposedly makes him an authority on matters of the law.

Except…

Yoo’s memos were so over-the-top bad in their reasoning that they were later withdrawn by the Bush Administration. And they were so over-the-top bad that an internal Justice Department report — again, initiated by the Bush Administration — is reportedly recommending that Yoo lose his license to practice law.

In other words: Yoo is controversial not merely because he has controversial ideas. He’s controversial because his shoddy work was below the standards of his profession. All of this is common knowledge, even if no formal action has yet been taken.

So the question remains: Why would the Inquirer be putting this man forth as a font of authority to its readers? Particularly when the op-ed in question — a critique of Obama’s promise to put an empathetic judge on the Supreme Court — contains nothing but some standard conservative talking points.

In his 2005 confirmation hearings, Roberts compared judges to neutral umpires in a baseball game. Sen. Obama did not vote to confirm Roberts or Alito, but now proposes to appoint a Great Empathizer who will call balls and strikes with a strike zone that depends on the sex, race, and social and economic background of the players. Nothing could be more damaging to the fairness of the game, or to the idea of a rule of law that is blind to the identity of the parties before it.

Yoo is right, of course, that you don’t want judges making decisions based on who can offer up the most puppy-dog heartbreaking story in front of the Supreme Court. We are a nation of laws, not men.

And yet: Let us suggest that the work done by Yoo and his colleagues Jay Bybee and Steven Bradbury offer up a perfect example of why some minimal level of empathy is a good and necessary quality to have when interpreting the law. Because their rationales for waterboarding and other practices are based quite explicitly in a lack of empathy that should be alarming to anybody who doesn’t want their government to torture. Read the memos. They make the case that no “reasonable person” would experience pain and suffering as a result of waterboarding, stress positions or sleep deprivation. There is, of course, sophistry at play here: The Bush Administration wanted to make these guys feel so bad that cooperating would seem a better choice, yet it had to be seen as trying to avoid making these guys feel so bad that actual pain and suffering would result. It’s a contradictory set of ideas that doesn’t stand up.

In any case, because the law in this case is so dependent upon the perceptions of the victim, a little empathy — How would I feel if I hadn’t been allowed to sleep for 11 days? How would I feel if I’d been waterboarded 183 times in one month — might’ve led Yoo and his colleagues to the correct legal position. Instead, they rightly face the prospect of losing their careers.

We know that the Inquirer is paying former Sen. Rick Santorum an astounding amount of money for his obnoxious columns. We’re curious what Yoo is earning for his writing. We’re not sure we want to know.

(Hat tip: Phawker)

The best man for the job?

There’s a fair amount of snorting amongst conservatives these days that President Obama will pick a woman, or a Hispanic, or both to replace David Souter on the Supreme Court. The concern — if that’s the right word — is that identity politics will triumph over merit in judicial selections. At National Review, John Derbyshire can be heard expressing both the substance and the tone of the objection:

Judge Sotomayor may indeed be dumb and obnoxious; but she’s also female and Hispanic, and those are the things that count nowadays. Get with the program, Pal.

Concerns about identity politics are laughable, of course, from a movement that gave us Clarence Thomas and Sarah Palin. And they reflect a real misunderstanding by conservatives about why liberals aim for diversity in making choices like these: It’s not simply that it’s awesome to have a black person on the court, or a woman. It’s that there are plenty of persons who aren’t white dudes who are probably well-qualified for the bench — and yet seven of the nine sitting justices are white dudes.

Some of that, of course, is a function of what the legal profession looks like: In 2000, 73 percent of American lawyers were men and 88 percent were white: By and large, the profession has been the province of white dudes. But that is changing: In 1980, both those numbers stood at 92 percent. It’s only in the last 20 years or so that a relatively large pool of non-white, non-dude lawyers has emerged to be considered for promotion to to judgeships.

That said: Picking a Supreme Court justice isn’t like picking a third baseman for the Phillies. With a baseball player, you can look at his fielding percentages, batting averages and RBIs and get a precise idea of where that player ranks against his peers. Judging judges, however, is more subjective: You can bring quantitative analysis to these things — how many times as he or she been overruled on appeal? — but at the end of the day, a judge’s quality is very much in the eye of the beholder. It’s kind of like picking a watermelon: You’re don’t know what you get until you cut it open — and even then, the results will vary according to taste.

And, finally, it’s worth pointing out that the selection of a judge is very much a political process — picked by a president, approved by the Senate, there is (and always has been) a host of political calculations that go into the pick.

President Obama’s job is to select a nominee who is academically and professionally qualified for the job. After that, if other factors come into play, big deal. There have been only two women in the entire history of the court, and only two black men. The legal profession is slowly but surely looking more like America; it would be startling — and a disservice to the country — if the highest court in America didn’t follow suit.

Unfounded speculation: Did Specter’s party-switching lead to Souter’s retirement?

In recent years, there’s been only one ostensible Republican who earned more ire from his party felows than Arlen Specter: Supreme Court Justice David Souter. Souter was nominated by the first President Bush back in 1990, a great unknown selected precisely for his ability to avoid an ideological battle — who then shocked Republicans by being (shudder) liberal. Instead of providing the deciding vote against Roe v. Wade, Souter managed to keep the court’s liberal bloc alive to fight another decade or two.

Specter, meanwhile, has been described as “independent-minded,” — but he’s been anything but on judicial issues. During the great Clarence Thomas nomination debacle, Specter became a bulldog, accusing Anita Hill of perjury for her sexual harassment allegations (and surprising Democrats who expected him to be an ally). And he became chair of the Senate Judiciary Committee a few years back by groveling and promising other Republicans he’d ignore his own pro-choice convictions and rubber-stamp the nominations of pro-life judges that came before the committee.

The party switch now presumably enables Specter to actually vote for the kinds of judges that are sympatico with his views. And since I’ll go ahead and say the odds of a GOP filibuster of any Obama Supreme Court nomination were about 60 percent, Specter’s switch — along with the presumptive election of Al Franken — means such an act would be much less likely to succeed.

Souter, it is known, wanted to leave the court when it was likely that a relatively liberal president would be able to put a relatively liberal justice on the court. That’s not unusual. But one wonders if the switching of Specter — and the changed dynamics of the Senate — wasn’t the final nail in the coffin. A Democratic supermajority might be a short-lived moment. Best to strick while the iron is hot.

Why an Obama administration will be better for women

For one thing, it will make laws against pay discrimination actually enforceable. A few years back, the Supreme Court decided to interpret federal law in such a way that businesses couldn’t be sued for discriminating against their female employees — so long as the businesses were minimally competent at covering their tracks. As I wrote at the time:

Last year’s Supreme Court decision was a boon for sexists and cheats. In ruling against Lilly Ledbetter, the court said this to businesses: “Go ahead and discriminate against your female employees. If you can hide your wrongdoing for six months, you’re in the clear!” Perhaps this was the correct technical ruling, but it’s awful policy. A woman has the right to expect she will receive the same wages as a man for doing the same good job as a man. Furthermore, she has the right to hold her employer accountable for falling short of the standard – and the right to expect there will be no artificial barriers to that accountability.

The Supreme Court ruling was one such “artificial barrier” that could’ve been fixed. Instead, President Bush and Congressional Republicans blocked the solution — complaining about a potential glut of lawsuits that would make it more difficult to thrive.

But there’s a way businesses can avoid such lawsuits: They can comply with the law and pay women and men the same for doing the same job. The law signed by President Obama will help ensure that happens.

North Philly drug deal inspires dime-novel prose from Supreme Court

The Washington Post reports that Chief Justice John Roberts wrote the following dissent from a decision in a Philly drug case:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

The good news here is that Scorsese is attached to direct.

For what it’s worth, Roberts’ prose came in the service of arguing, essentially, that Philly cops don’t need much evidence to make a drug arrest — just a pretty good hunch. The Pennsylvania Supreme Court and Roberts’ own Supreme Court thought otherwise.

America: Where your potential innocence is no bar against your execution

The Supreme Court denies a Georgia inmate’s death-row appeal:

The 1991 death sentence against Davis came under scrutiny after seven of nine witnesses who helped convict him recanted their testimony or changed their statements. Several told of being pressured by police to tell them what they wanted to hear. In addition, three other people have said another man who identified Davis as the killer had confessed to being the actual triggerman.

I generally think the rule of law protects us more than it hurts us. But sometimes the law is an ass.

Is Davis innocent? I don’t know. But in our rush to make sure that nothing can keep us from killing the bad guys in our society, we are — if we haven’t already — going to kill an innocent man. And let’s not shrink from calling this what it is: If the law turns a blind eye to new evidence of innocence (or, minimally, new evidence that the “reasonable doubt” threshhold no longer holds) in a death penalty case, then the law is evil. There’s no two ways about it.