Obama, Alito, and Sotomayor

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Back during the nomination hearings for then-Judge Samuel Alito, Senator Barack Obama defended his vote to filibuster Alito, for reasons that included the following reasoning:

I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.
I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

But when you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.

If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state. He's rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He's refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He's overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.

It's not just his decisions in these individual cases that give me pause - it's that decisions like these are the rule for Samuel Alito, not the exception.

When it comes to how checks and balances in our system are supposed to operate - the balance of power between the Executive Branch, Congress, and the Judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either Congressional acts or the check of the Judiciary. He believes in the overarching power of the President to engage in whatever the President deems to be appropriate policy. As a consequence of this, I'm extraordinarily worried about how Judge Alito might approach issues like wiretapping, monitoring of emails, or other privacy concerns that we've seen surface over the last several months.

In sum, I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens.

By that standard, now-President Obama should find the current president's nominee disturbing for the same reasons he found the last Supreme Court nominee disturbing, at least if he's going to be consistent. In fact, he should promote a filibuster.

At the time I thought it was an extremely thin justification for even opposing the nominee on a Senate floor vote, never mind to support the unprecedented move of filibustering a Supreme Court nominee based on disagreement over ideology on what Obama in other speeches called the 5% of cases where the law was unclear. I suspected he was insincere in the reason he gave, since it's a pretty unfair characterization to pretend that Alito's record on such matters was worrisome without comparing his rate on such matters with that of other judges and then seeing if the cases where there were differences involved some matter of principle (thus placing it in the cases Obama calls the 90%) or was a mere gut response (thus placing it in the cases Obama calls the 10%). But now we know that it was empty rhetoric, since he's unwilling to apply the same test to his own nominee.

According to Tom Goldstein, Judge Sonia Sotomayor has decided 96 cases on race while sitting on the Second Circuit (her current appeals court position). An overwhelming 78 times she rejected the claim of discrimination. She upheld the discrimination claim 10 times, 9 of which were unanimous decisions among the three judges hearing the case. Only in one case did she uphold a discrimination claim when there was any disagreement on the panel in question. This is actually more like 10% rather than the 5% that Obama said the law was unclear on. Sotomayor rejected discrimination claims 8 to 1. Goldstein's summary is apt. "Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

In that light, let's consider Obama's reasons for filibustering Alito's nomination. He treated it as irrelevant that Alito is qualified, intelligent, and of great character. The mere fact that in the overwhelming majority of cases he happened to side with employers, government, or corporations and against individuals or smaller groups was supposedly enough for him not just to vote against Alito's nomination but to seek to filibuster it, something that had never in U.S. history happened with a Supreme Court nominee for merely ideological reasons.

There's no reason to think President Obama's nominee is biased in a way that would cause her to deny such a huge majority of discrimination claims. She's given several speeches that have included a line about how she hopes her being a Latina judge would make her a better judge than a white man would be, given her experiences that white men would not have. If such statements have any significance for how she would rule on race-related cases, you would certainly not expect her to favor those charged with discrimination, especially given that virtually everyone who knows her cases classifies her as left-leaning, and those who know her cases well believe her to have a similar judicial voting record to what Justice Souter has had on the Supreme Court. So it's unlikely that her record on these cases means bias against discrimination claims. She's simply a good judge, and a lot of discrimination claims simply don't stand up on the merits. (That doesn't always mean discrimination didn't occur. Often it's that it can't be legally established or that its existence in a particular case doesn't have the legal implication that its victim claims.)

But what does that mean for Obama's justification for voting to filibuster Alito? It shows how unfair it was. You can't judge be a mere percentage of cases whether a judge is favoring either side unfairly. The same would be true if the cases had overwhelmingly gone the other way. You have to know the details of each case to have any sense of whether the case was rightly-decided, wrongly-decided, or what Obama calls the 5% of cases that could go either way. If you don't know that, then the mere percentage of cases that went one way tells you nothing. It may well be that all of those cases were rightly-decided in favor of the employer, for example. The fact that both Alito and Sotomayor have percentages that skew their results in such a way shows how patently ridiculous Obama's justification for his vote really was. I conclude, then, that President Obama ought to lead the charge in recommending to the U.S. Senate that they filibuster the nomination of Judge Sonia Sotomayor. Consistency requires such a recommendation. Otherwise he ought to issue a public apology to Justice Alito and repentantly beg his forgiveness. A president who consistently tries to paint himself as a moderate who favors bi-partisan cooperation and civility of dialogue among those who disagree politically ought to be willing to recognize when he has violated those very standards, and this seems to be a case where he certainly has. (I'd be prepared to say that his treatment of then-Judge John Roberts, now Chief Justice of the United States, was in the same category.)

Now this doesn't mean the Republicans ought to try to filibuster Judge Sotomayor's nomination. This is about Obama's own consistency and about whether his comments at Alito's nomination were honest and fair. There may well be reasons for Republicans to try to filibuster this nomination. I don't think it's inconsistent to oppose certain measures as historically unprecedented but then to acknowledge that the opposing party has changed the standards and to resort to them given no other recourse to keep the balance as a minority, since liberals have consistently prevented some of the top choices for conservative judges from being appointed successfully, while conservatives have had a very hard time achieving the same effect with liberals given their resistance to using such tactics. You can resort to a tactic that you'd rather no one use but eventually concede that you have to use it if the other side won't back down from using it.

The same goes for the view that it's a bad idea to oppose a Supreme Court nomination on ideological grounds. Several Democratic senators have led the way in changing the general consensus on that issue in recent years, Obama among them. Some Republicans share that view, but many do not. Given that Democrats will not back down on that issue, such opposition does not have to be taken as a moral absolute. It can be taken as a general preference for avoiding such tactics that one might resort to given the insistence of the other side seeking to have a stronger influence on the courts than one's own side does by using tactics the other side has not been willing to use. A reasonable response to such a situation is to back down on what one would prefer in terms of tactics.

Nonetheless, it would be stupid to filibuster this nomination. Judge Sotomayor is probably as good a nominee by conservative lights as anyone could expect to get from President Obama. I'm convinced that all three of his other short-listers would be less friendly to concerns conservatives would care about, expect perhaps on specific issues. For example, Elena Kagan would be more friendly toward Bush views on security and executive power, something Obama may kick himself for once Sotomayor is on the Supreme Court if she, as I expect, continues to vote the way Souter has voted instead of taking the majority toward views more favorable to the ways Obama has continued Bush policies on the war on terrorism, which Kagan would have been more sympathetic to. But I'm convinced Kagan would probably more easily import ideology over the law than Sotomayor would do, given Sotomayor's case history and Kagan's lack of judicial experience, which often produces justices who vote based on policy preference. In fact, we actually know very little about how Sotomayor would vote on key hot-button issues such as abortion. If she votes as Souter did, there's no change, but Obama picked a wild card (and she does happen to be Catholic, which may make her more sympathetic to pro-life concerns about how the Supreme Court has created a constitutional right to abortion that doesn't exist in the Constitution).

So it's likely that if Republicans succeeded in filibustering this nomination, it would only lead to a more liberal nominee in many ways. But it's also extremely unlikely that any opposition to Sotomayor's nomination will have zero effect in terms of her reaching the Supreme Court. There will be Republicans who will refuse to vote against her, on their conviction that it's wrong even to vote against a nominee who is qualified. I've argued that it isn't inconsistent to vote based on ideology, even to attempt a filibuster over ideology, even if one has opposed such measures in the past. But that doesn't mean Senators like John McCain would actually do such a thing. I would be very surprised to see him opposing this nomination, never mind filibustering it. For Republicans to filibuster successfully, they would need every member of their caucus in the Senate to vote against cloture. Either that or they'd need to get some Democrats to fill in the spots that Republicans who don't participate would leave vacant. There's just no way that will happen short of some major revelation about Sotomayor that would raise serious concerns about her competence or fairness as a judge, and that seems really unlikely at this point. Those who sought to filibuster Sam Alito looked like complete idiots, and the same will happen with any Republicans who try the same thing this time. It will also make it more difficult to oppose a more obviously liberal and judicially-activist nominee when Obama will probably try to appoint such a person for a later opening in the Supreme Court, which could very easily happen in the remainder of his presidency.

So I recommend to Republicans in the Senate that they should either support this nomination or vote against it on a floor vote. I'd be disappointed if Judge Sotomayor gets confirmed with the overwhelming support given for then-Judge Ginsburg and Breyer's nominations when Republicans controlled the Senate during President Clinton's time in office. The unwillingness of Democrats to give such deference to the president's choices should convince Republicans that the standards have simply changed, and they can't keep giving deference while ignoring ideology altogether. But they should also take into account the impossibility of succeeding in opposing this nomination and the need to reserve what political capital they do have for likely future nominations, especially if their support for Sotomayor might help them regain some seats in the Senate to be able to oppose a more radical judge in the future, and they should keep in mind that this is about as good a judge as they could expect by from Obama, just as Democrats should have realized that Bush wasn't going to send them a judge who was less conservative than the moderate conservatives Roberts and Alito.

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