Conservative Shadowboxing on Sonia Sotomayor

This week's Senate confirmation hearings for Supreme Court nominee Sonia Sotomayor closed Thursday, not so much with a bang, but a whimper, with the confirmation committee's ranking Republican member Senator Jeff Sessions going so far as to say to the judge, "I will not support and I don't think any member of this side will support a filibuster or any attempt to block a vote on your nomination. I look forward to you getting that vote before we recess in August."

Sessions' remarks were a fitting coda to match Republican Senator Lindsay Graham's statement during opening remarks on the first day of the hearings, "Unless you have a complete meltdown, you are going to get confirmed." But Republican politicians and conservative pundits managed to fit quite a show of political theater in between.

For a nominee who is apparently almost guaranteed to be confirmed, and may even garner a few Republican votes, Judge Sonia Sotomayor has faced quite a gauntlet of unfounded accusations by conservatives this week. Here are a few of the talking points most frequently aimed against her:

The Accusation: Sonia Sotomayor Wants to Take Away Your Guns

Fox News said, "Judge Sonia Sotomayor could walk into a firestorm on Capitol Hill over her stance on gun rights, with conservatives beginning to question some controversial positions she's taken over the past several years on the Second Amendment."

The NRA said, "From the outset, the National Rifle Association has respected the confirmation process and hoped for mainstream answers to bedrock questions. Unfortunately, Judge Sotomayor’s judicial record and testimony clearly demonstrate a hostile view of the Second Amendment and the fundamental right of self-defense guaranteed under the U.S. Constitution."

Republican Senator Orrin Hatch grilled Judge Sotomayor extensively during the confirmation hearings on her decision in a particular case, Maloney v. Cuomo, in which she ruled that while the Second Amendment prohibits the federal government from prohibiting citizens in general from owning weapons, states have the right to regulate weapon ownership by placing restrictions on the types of weapons people can possess, as long as they have a rational basis for doing so.

At one point, Hatch strongly implied her ruling had generally endangered the Second Amendment, saying "As a result of this very permissive legal standard -- and it is permissive -- doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?"

The Reality: Sonia Sotomayor Wants to Take Away Your Nunchucks, Sort Of. Okay, Maybe Just James Maloney's Nunchucks. Oh, Wait-- He Still Has His Nunchucks? And He Never Actually Went to Jail Over Them? Hmm.

You read me right -- not guns -- nunchucks. Nunchacku. You know, that stick weapon with the two short sticks connected by a chain in the middle? And okay, she doesn't really necessarily want to take away your nunchucks in particular, unless you live in New York, and have violated the law -- in the case Senator Hatch, Fox News, the NRA and several hyperventilating conservative bloggers have referred to, Maloney v. Cuomo, a man who had been charged with misdemeanor weapons possession for possessing nunchucks (the charges were later dropped) sued the state of New York, claiming a violation of his Second Amendment rights.

Judge Sotomayor merely upheld the state's right to charge Maloney under a particular New York regulation that prohibits the possession of nunchucks. There were no guns involved in this case. None.

So why all the fuss? Well, this was the only case that conservatives could find to try to challenge Sotomayor's Second Amendment stance. She hasn't ruled on any major cases concerning guns. 

(Incidentally, James Maloney has since started a club called the National Alliance for Relief of Nunchuck Intolerance in America, aka NARNIA. Yes, I'm serious.)

The Accusation: Sonia Sotomayor Wants to Apply Foreign Laws In the United States and Ruin Our Constitution with Foreign Ideas

In February, Supreme Court Justice Anonin Scalia gave a speech at the conservative American Enterprise Institute about the influence of foreign legal precedent on judicial decisions in the United States. In his talk, Scalia warned of what he perceives as a growing over reliance of U.S. judges on foreign legal opinions:

If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed. I dare say that few of us here would like our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and beliefs of our people that they can be judicially imposed through constitutional adjudication? And is it really an appropriate function of judges to say which are and which aren't? I think not.

In April, Sonia Sotomayor gave a speech in response to Scalia's, in which she said,

Ideas have no boundaries, ideas are what set our creative juices flowing, they permit us to think. And to suggest to anyone that you could outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas, to some good ideas—there are some ideas we may disagree with for any number of reasons. But ideas are ideas, and whatever their source—whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California or any other place—if the idea has validity, if it persuades you, si te convince, then you are going to adopt its reasoning.

Conservative National Review blogger (and paragon of professional virtue outer of anonymous bloggers who have reasonable reasons to be anonymous) Ed Whelan freaked out over this speech before the hearing even began, claiming "she offers a blanket defense of freewheeling resort to foreign and international legal materials."

During the hearings, Senator Lindsay Graham said, "I mean, the speech you gave to the ACLU about foreign law, we'll talk about that probably in the next round, was pretty disturbing."

The Reality: Sotomayor's Views Are Closer to Scalia's Than Conservatives Would Like to Admit

Here are some quotes from one of the abovementioned speeches:

Moreover, I do not take the position that foreign law is not ever, never ever relevant to American judicial decisions. It sometimes is, for example, in the interpretation of treaties. The object of treaties is to have nations agree on a particular course of action, and if I'm interpreting a provision of a treaty which has already been interpreted by several other signatories, I am inclined to follow the interpretation taken by those other signatories, so long as it's within the realm of reasonableness. [. . .]

In other cases, moreover, the issue that arises under the statute depends upon foreign law [. . .]

And finally, I think foreign law can also profitably be discussed in opinions of United States Courts where it is consulted in response to the argument that, "if you interpret it this way, the skies will fall" - you know, predictions of disaster if you rule a certain way. Well, you can look to foreign law and say "well, they did this in Germany, and the skies didn't fall." That's certainly a very valid use of foreign law.

Which judge said these words about the need to incorporate foreign law into certain decisions made by U.S. courts? Scalia did.

What? You mean even Justice Scalia thinks we tcould benefit from comparing our legal issues to those faced by other countries, and that we technically ought to abide by the international treaties we've signed on to?

Why, yes. Yes he does. Sorry, Mr. Cheney.

And in the very Sotomayor response that Senator Graham claimed to be so disturbed by, Sotomayor herself made it clear that, except in cases where it would be required by treaty or circumstance, she did not think it would be appropriate for judges to base their decisions on foreign laws as precedent, but rather she thought it was important for judges to increase their knowledge of a subject by studying foreign law, saying:

I always find it strange when people ask me, “How do American courts use foreign and international law in making their decision?” I pause and say: We don’t use foreign or international law, we consider the ideas that are suggested by international and foreign law. That’s a very different concept. And it’s a concept that is misunderstood by many, and it’s what creates the controversy that surrounds—in America especially—that surrounds the question of whether American judges should listen to foreign or international law. And I always stop and say, how can you ask a person to close their ears?

The Accusation: Sonia Sotomayor Is a Racist

If you haven't heard this one, you've been living under a rock. In a 2001 speech, Judge Sotomayor is recorded as saying, regarding judges, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." Several conservative pundits, including Rush Limbaugh, Ann Coulter, and Newt Gingrich, have claimed this statement is racist and implies that the judge thinks Hispanics are better than white people.

The Republican Senators at Sotomayor's hearing couldn't seem to go more than a couple of hours at a time without bringing this up in some fashion. Senator Graham, in his opening comments, said that he didn't want the hearing to be all about "The Hispanic thing," and yet somehow, the Republicans still managed to make the hearings mostly about "The Hispanic thing."

The speech was mentioned numerous times by multiple Republican Senators as a main source of reservation about Sotomayor; it was referenced in conjunction with her ruling in the Ricci v. De Stefano case -- where she upheld a municipality's decision to throw out a promotion test for firefighters that the municipality deemed produced racially disparate results -- as evidence that Sotomayor has a habit of allowing her cultural background to unduly bias her decisions in favor of minorities.

Republican Senators even attempted to paint Sotomayor's membership in the charitable Puerto Rican Legal Defense and Education Fund, a perfectly respectable legal aid organization, as a connection to some sort of radical leftist racist group. Senator Jeff Sessions claimed, "During her time there, the organization took extreme positions on legal issues ranging from the death penalty to abortion to racial quotas."

But Republican Mayor Michael Bloomberg of New York set them to rights by publicly praising both the organization and Sotomayor's work there.

The Reality: Sonia Sotomayor Thinks Women Judges Better Understand Women's Circumstances, and Ruled Against an Hispanic Man in the Ricci Case

If you read the Sotomayor's entire speech, you will find that she was actually talking very specifically about how the growing presence of women and minority judges on the bench is changing the way cases involving women and minorities are handled; she mentions that "The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases." Her argument in the speech is really that the presence of more women and minorities in the judicial system, with the experience they bring to the court has been scientifically shown to produce better, fairer outcomes for women and minorities seeking justice -- not that Hispanic women are in some way intrinsically superior to white men.

Moreover, she takes care to note, "I [ . . . ] believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

And in that Ricci v. De Stefano firefighter test case? Conservatives seem to frequently fail to mention that Mr. Ricci's cocomplainant in that case was Benjamin Vargas -- an Hispanic man who had passed the test in question. Sotomayor ruled against an Hispanic man in Ricci when she upheld the law.

If Sotomayor is to be confirmed anyway, what exactly have the Republicans accomplished with these unscrupulous attacks on her record and character? Were they putting up a tough front, opposing Obama's nominee for the sake of looking like an organized opposition? Were they attempting to distract the media from Obama's health care reform agenda by protracting the debate? Were they simply trying to stay in the news for their own sakes, fishing for soundbite coverage?

Were they crassly playing to a portion of their base they know is still uncomfortable with the idea of not just a woman, but a Latina woman,  joining the Supreme Court?

Whatever their motive, I wonder if they have considered the cost. Women voters and Hispanic voters, many of whom are thrilled at the prospect of better representation on the Supreme Court, do, in fact, get CSPAN.

Comments

[cynematic]

When I moved, I inherited the phone number of very active right-wing members of the GOP. I still get the fundraising calls of the many conservative organizations they donated to.

Going by how often my phone rang this week from these groups, I'd say the main audience the GOP Senators were trying to talk to were donors to the GOP. The Republican Senators knew they were impotent going into the hearings. Instead, they tried to sow as much grievance, hatefulness, and dissension as possible, as a sort of right-wing version of a televised pledge drive.

Or, maybe super-sneaky Democratic operatives acting as double agents within the GOP urged the Senators to sound off on racist, anti-Latino rhetoric so as to ensure that NO Latinos in 2012 vote Republican.

In which case, good job, super-sneaky Democratic double agents--you've succeeded beyond your wildest projections! The GOP is now known for its bigotry and intolerance!

[E R Bagwell]

Pat B.'s comments remind me of one of my favorite lines from the movie American Gangster..."you've upset the natural order of things." In other words... some people are supposed to be 'on-top' and others are born to be...'on the bottom."
Poor Pat... the world has turned upside down in his lifetime... what a glorious turn of affairs! And that's why I do my part... to keep those affairs turning in favor... of those that Pat B. can't stomach.

[Glennia]

I'd to take my imaginary nunchucks and beat crazy old Pat Buchanan about the head and shoulders with them, all the while shouting, "For NARNIA! And the Second Amendment!" In Spanish. Wearing a judicial robe.