The Enlightened Despot

• How about that? An enthusiastic reception and the most flattering picture I’ve seen of her from the New York Post. Hometown love trumps ideology. Incidentally, you can count on seeing a headline reading ‘SOTOMAJORITY’ the first time she writes an important majority opinion. It’s not quite as obvious in advance as the ‘Exit Sandman‘ headline we’ll see in 2010, but it’s close.
• The controversy over Sotomayor’s ‘wise Latina’ comments doesn’t, I think, have legs. It really is superficially offensive, pace the counter-outrage on the left, and I’m still not wild about it in context. At the very least, she could have been more careful with her words. But it’s pretty clear that she was referring to judgement on issues concerning women and minorities. She didn’t mean that a wise Latina will just be a better judge than a white man in general, though that is what she said. She will no doubt get grilled about this, but it won’t change the fact that she is a shoo-in.
• All the griping about identity politics and affirmative action is ugly. It’s all well and good to argue against preferential treatment and lowered standards on the basis of race as a general practice, but if you really think Sotomayor is a mediocre talent who got the nod because she is hispanic, then clearly the part to focus on is that she is a mediocre talent. Your empirical evidence for this fact is what lead you to conclude that racial preferences are afoot, right? The theory about Obama’s motivations is really just a side show, not particularly germane to the discussion. Of course, it’s a lot easier to demonstrate that someone is a Latina than that she is incompetent. But laziness is no defense for racism.
• You will hear a lot about how Sotomayor’s decisions are overturned at a high rate. Nate Silver points out that this is based on a very small sample, and that the sample actually shows the opposite. So you can put that in the straightforward lie file. The Volokh Conspiracy tries to plug Sotomayor into the results of a more rigorous statistical study, which shows her to be more or less in the middle of the pack. The methodology is murky at best, though. I doubt that there is any statistical shortcut here - if you want to figure out how smart and capable a judge is, you just have to read some of her opinions. Alternatively, you could acknowledge that she will be confirmed, for good or ill, and change the channel.

• President Barack Obama announced his nominee to replace David Souter: Sonia Sotomayor. Jeffery Rosen wishes conservatives wouldn’t use his critical article about her from a few days ago as a source for criticism of her now. He won’t get his wish.
• California’s highest court upheld Proposition 8, but maintained that existing same-sex marriages were still recognized.
• Rumblings that North Korea is only getting warmed up in its latest campaign to bum the rest of the world out.
• Everything you learned in sex-ed was a lie.

As was widely expected, California’s Supreme Court has upheld Proposition 8, which amended the state’s constitution to ban gay marriage, but held that existing gay marriages were still legally valid. Here are two reactions that sum up why I find constitutional law so depressing. First, John Culhane:

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked.

They blinked! Now, we all know from our dear friend Sarah Palin that blinking is a terrible thing to do, but I’m at a loss as to what constitutes judicial blinking. Culhane notes that he hasn’t read the decision yet, and legal analysis will follow. But he already knows the court did wrong. Not based on the merits of the case, mind you, but because courts are supposed to stick up for minorities. This man is a law professor.

Now, here’s Maggie Gallagher, who is thrilled, because she doesn’t like gay people, but cautious, because she doesn’t like Californians or judges either:

Six to one. Even in California there is only one justice willing to strip 7 million voters of their core civil right, expressly guaranteed, to amend their own constitution. I should be grateful, right?

Amending one’s constitution by a direct majority vote of the electorate is a core civil right? That’s bad news for anyone who lives in, say, the United States of America where no such right exists. True, Californians are expressly granted that right in regards to their Constitution. But the bar for revising the Constitution is different. The legality of Prop 8 comes down to whether it constitutes and amendment or a revision. Perhaps Gallagher is aware of this, but the argument she actually puts forward is that amending constitutions is a core civil right. Neat.

For what it’s worth, ‘revision’ - as opposed to ‘amendment’ - refers to a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.” That’s pretty vague, but it’s as good as it gets. You might think that the treatment of marriage is pretty obviously just a set of provisions within the document. On the other hand, you might think changing the Constitution froma document that doesn’t draw distinctions between the union of men and women and the union of men and men or women and women to one that does is a pretty substantial, overarching disaster. I’m not really sure, but I am sure that just about nobody cares.

Which is fine, so far as it goes. I’m not wild about giving practically unlimited legislative authority to unelected lawyers, but it’s a system that’s worked well enough for us so far, and it’s not going anywhere. What is frustrating is the near-universal denial about what is going on. As far as I can tell, these three things are true of almost everyone:

1.) They believe that legislators should interpret the law, rather than read into it what they want. ‘Legislating from the bench’ is a bad thing.

2.) The right decision for the courts to make on the major Constitutional issues of contention (abortion, affirmative action, gay rights, abortion, abortion, etc.) is - happily! - the decision whose outcome lines up most closely with what they think the law should be.

3.) They have absolutely no idea what the legal arguments on which these questions balance are. Not a clue. There are core, Constitutionally guarunteed rights that people are certain are in there, but they wouldn’t know what Article to open to to find them.

This is a fairly ludicrous combination, but I find it to be true even of most well-educated people. There are some differences of degree, especially with regard to item 1. Conservatives will talk about strict, literal interpretations, whereas liberals are generally more happy with talk about ‘the spirit of the law’, whatever that might be. But this is nonsense. Conservatives want the courts to do conservative things and liberals want them to do liberal things. How many conservatives had to look at precedents on the distinction between ‘amendment’ and ‘revision’ in Californian Constitutional Law?

There are some lefties - especially younger ones, it seems to me - who are pretty openly happy about saying they think Justices should make stuff up to justify decisions that will help people. But for the most part, conversation about the Supreme Court is located firmly within a collective fantasy about what it does. And it hurts my head.

On the other hand, I note with some satisfaction that Sotomayor is - according to our president, anyway - a life-long Yankees fan. So her heart is in the right place. And that’s what matters, isn’t it?

Tom Goldstein has a good primer on what to expect in the coming nomination fight. He goes over four lines of attack that we’re likely to see from right-wing ideologues. Here’s the first:

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 public expects Supreme Court Justices to be brilliant.

Obliquely, eh? Only on background, you say? Rick Brookhiser, moments after the announcement, responding to Sotomayor’s claim that “a wise Latina woman” could come to a more informed conclusion on some issues than a white man:

It might be that we need a wise Latina, but doesn’t saying so qualify you as a dumb Latina?

That didn’t take long.