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Reports

Sotomayor’s Critics Are the Real Radicals

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Posted on Jul 12, 2009

By E.J. Dionne, Jr.

    This week’s hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court represent the opening skirmish in a struggle to challenge the escalating activism of an increasingly conservative judiciary.

    The Senate’s Republican minority does not expect to derail Sotomayor, who would be the first Hispanic and only the third woman to serve on the court, and they realize that their attack lines against her have failed to ignite public attention, or even much interest.

    Her restrained record as a lower court judge has made it impossible to cast her credibly as a liberal judicial activist. “They haven’t laid a glove on her,” said Charles E. Schumer, D-N.Y., her leading Senate supporter.

    Yet none of this diminishes the importance of the Senate drama that opens on Monday because the argument over the political and philosophical direction of the judiciary that began 40 years ago has reached a critical moment. Under Chief Justice John Roberts, conservatives have finally established a majority on the court that is beginning to work its will.

    Republican senators know that Sotomayor’s accession to the court will not change this, since she is replacing Justice David Souter, a member of the court’s liberal minority. But they want to use the hearings to paint the moderately liberal Sotomayor as, at best, the outer limit of what is acceptable on the bench in order to justify the new conservative activism that is about to become the rule.

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    “They have more or less given up on defeating her, so they are going to engage in a framing exercise,” Sen. Sheldon Whitehouse, D-R.I., a member of the Judiciary Committee, said in an interview. “They’re trying to define a Republican worldview imported into the judiciary as the judicial norm for the country.”

    The goal, Whitehouse added, “is to define the political ideology” of the new conservative judiciary as “representing the mainstream, and to tarnish any judges who are outside that mark.”

    If you wonder what judicial activism looks like, consider one of the court’s final moves in its spring term.

    The justices had before them a simple case that could have been disposed of on narrow grounds, involving a group called Citizens United. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign finance law for a movie critical of Hillary Clinton that it produced during last year’s presidential campaign. Citizens United says it should not have to disclose who paid for the film.

    Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.

    What the court was saying is that it wanted to revisit a 19-year-old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley law banned independent expenditures by both corporations and labor unions.

    To get a sense of just how extreme (and, yes, activist) such an approach would be, consider that laws restricting corporate activity in elections go all the way back to the Tillman Act of 1907, which prohibited corporations from giving directly to political campaigns.

    It is truly frightening that a conservative Supreme Court is seriously considering overturning a century-old tradition at the very moment when the financial crisis has brought home the terrible effects of excessive corporate influence on politics.

    In the deregulatory wave of the 1980s and ’90s, Congress was clearly too solicitous to the demands of finance. Why take a step now that would give corporations even more opportunity to buy influence? With the political winds shifting, do conservatives on the court see an opportunity to fight the trends against their side by altering the very rules of the electoral game?

    Such an “appalling” ruling, Schumer said in an interview, “would have more political significance than any case since Bush v. Gore.” He added: “It would dramatically change America at a time when people are feeling that the special interests have too much influence and the middle class doesn’t have enough. It would exacerbate both of these conditions.”

    So when conservatives try to paint Sotomayor as some sort of radical, consider that the real radicals are those who now hold a majority on the Supreme Court. In this battle, it is she, not her critics, who represents moderation and judicial restraint.

    E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.

    © 2009, Washington Post Writers Group


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James M. Martin's avatar

By James M. Martin, July 15, 2009 at 5:25 am Link to this comment

If you want to see a perfect example of right wingnut Repub judicial activism, you need go no further than Bush v. Gore, the 2000 coronation of George II by a 5-4 majority.  Five of the nine nutty professors cast aside decades of precedent that saw refusal of certiorari in cases involving states’ rights to run their own elections so that Dubya could be ensconced in the White House (to disastrous results with which we are all more than familiar).  Some of the justices actually reversed course on matters they’d earlier decided in opposite fashion.  The only reason Sen. Jeff Sessions is throwing activist darts at Judge Sotomayor is that he is envious of her ability to do so much more than he could (the Senate rejected him for a job she already has), and I can guarantee you that if Sessions were on the bench, you’d see some real judicial activism, mainly striking down laws that favor civil rights.  This shameless bigot should just shut up and vote with the minority.

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By taikan, July 14, 2009 at 6:29 pm Link to this comment

It’s a sign of how successful the Republicans have been in framing the debate that Dionne labels Souter, who was appointed to the Court by George H.W. Bush, as a liberal.  In fact, when viewed in the context of the post WWII Court, Souter and Sotomayor are both middle of the road. 

The success of the Republican strategy was illustrated very well by Justice Stevens.  When asked what had made him change from a middle of the road jurist to a liberal, he replied that his judicial philosophy had remained the same but that the Court had moved so far to the right he now was on the left side of the Court.

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By P. T., July 13, 2009 at 9:33 pm Link to this comment

It is corporate lobbyists’, not judges’, role to make law.

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By hippie4ever, July 13, 2009 at 3:52 pm Link to this comment

When I think of the legal system I remember the assaults on friends and loved ones in the name of The War on Drugs. You could call it more accurately The War on the American People. Imagine waking up and fleeing to the sound of helicopters, and you don’t live in 1968 Vietnam, but 2004 Humboldt County, California. That’s the reality of thousands in northern California.

In my life, nothing has been more influential except possibly the Gay community. And there are numerous horror stories there too involving the legal system. What evil society is it that criminalizes love?

We are serfs under a monarchy in turn propped up by Churches, yeah yeah yeah I get that; problem is, we serfs don’t know our place. And we provide valuable services and products. How would you rich people like to live without weed? How would you like it if you shopped at Whole Foods and found empty local organic bins? You don’t think THAT’S possible?

Is Sotomayor an issue or nonissue? I’d argue the latter; she’s moderate/liberal replacing the same, albeit to the consternation of the GOP. Her vote won’t, unfortunately, stop the radical fascist majority on the Court from their future assaults on human liberty and justice.

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driving bear's avatar

By driving bear, July 13, 2009 at 12:39 pm Link to this comment

Just after Obama Selected her CNN ran a poll that showed that Americans supported her nomination by 2 to 1 . last week CNN poll showed her support was down to 47% So I would say the Republicans have laid a glove on her. Also today at the hearing she was doing her best to sound like Judge Roberts.

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By NABNYC, July 13, 2009 at 12:12 pm Link to this comment

This hearing about Sotomayor is just a diversion, a circus for the public, that will allow the Republicans in Congress to reassure their base that they are still extremist right-wing racists who hate women, and will allow the Democrats in Congress to pretend that they actually do something on behalf of the public.  Which they don’t, by the way.  This reminds me of the baseball steroid hearings held by Congress which allowed them to give big lectures against drugs while, off camera, collecting autographs from the players.  If you look around the country and wonder who the sucker is—it’s us.

Sotomayor is, as far as we know, a moderate judge.  She is female and since the only other female will likely be leaving, that means we will continue to have 10% of the court female despite the fact that 50% of the public is female.  Her being Hispanic is a sop to the Hispanic voters, but the effect is unlikely to change anything for that group, or any other group.  It takes 51 votes to confirm her, and the Democrats have 60, so let’s stop pretending this is a big deal. 

What would have meant something is if the Democrats had stood against the Republicans packing the courts with extremist right-wingers such as Scalia, Alito, and Roberts.  Not to mention the dim-witted and unqualified pubic-hair-and-coke-drinking Thomas.  That would have been important.  But this charade is of no consequence except as a diversion, an opportunity for the Democrats to pretend they are helping us while they fail to pass single-payer healthcare or Medicare for all, refuse to stop these disastrous wars, refuse to prosecute and seize the assets of the criminals on Wall street who have looted our country, refuse to prosecute the war criminals, refuse to create job programs or stop the give-away of public money to Wall Street and the corporations. 

Instead, the Democrats want to pretend that with a 60-vote majority in the Senate, they are somehow being courageous when they publicly defend a former prosecutor (who presumably did her share to contribute to throwing more Hispanics into prison), middle-of-the-road judge who has spent her entire life striving to be a moderate to advance her own ambitions, and who is unlikely to do anything to challenge the corporate control of our country.  Big deal. 

http://NABNYC.blogspot.com

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By Stepping Razor, July 13, 2009 at 11:14 am Link to this comment
(Unregistered commenter)

The Democrats are not inept IMO. They are bought by the corporations and must walk a tightrope between the people who elect them and the corporations who give them the money to get elected. It is a sad situation. I pray for the time when the Democrats get tired of being the prostitutes of the corporations and decide to rejoin the People.

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By Cher, July 13, 2009 at 8:40 am Link to this comment
(Unregistered commenter)

Being a judge is about the rule of law. Labeling those who raise questions and concerns as radical is the oldest trick in the book, designed to put a gag on those who dissent. If Sotomayor were pro-life the libs would be screaming bloody murder.

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LostHills's avatar

By LostHills, July 13, 2009 at 8:11 am Link to this comment

Too bad Obama doesn’t have the guts to appoint a real liberal to the court to balance out the right wing Bush appointees. Too bad Obama doesn’t have any courage, whatsoever. Too bad for america that the supreme court has become so corrupted. Too bad for the world that our great experiment in democracy is failing…..

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By Sunflour O' Leisure, July 13, 2009 at 7:23 am Link to this comment
(Unregistered commenter)

Too many folks think she’s a-ok for the Supreme Court, and that should give pause. We need a radical for the court. The right kind of radical, that is.
To see most of the sellouts and corrupters on Capitol Hill smile approvingly means she will diligently do what’s politically expedient. E.J. Dionne has proven herself to be a writer of and for the status quo.

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By ardee, July 13, 2009 at 3:06 am Link to this comment

Our system of governance is shown to be a failure once again. The GOP makes absurd charges about “activist judges” yet, when in the majority, appoints its own activists to the courts.

The Democrats prove only to be incompetent, weak and ridiculous, whether in a majority or minority position.

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