Thursday, May 28, 2009

Is Justice Alito a Biased Judicial Ideologue Who Only Focuses on His "Background"?

Thanks to Glenn Greenwald and Daily Kos, this is floating around the web, but will it kill conservative discourse regarding the appropriateness of "background" or "empathy" to a judicial appointment?

If Alito believes he "has" to think of his background when he decides certain cases, does that mean he is unfit for the bench? Not really. I would apply the same standard to Sotomayor.

See also: Conservative Judicial Empathy? You Betcha!


Aeneas said...

I've been reading your commentary and analysis on the Sotomayor nomination and following some of it on the news. I am too lazy (aren't you glad I'm not one of your students?) to comment on each one and some of that is due to judicial ignorance, but here's one all encompassing comment--like you said, oy veih!

There's blood in the water, sharks on both sides and yes, fools on both sides. On one side, she can do no wrong, on the other side, she can do no right. But this can of worms was opened, I'm afraid, by this 'compelling story' narrative and this 'empathy' trope. This fuzzy, touchy, feely approach with warm slogans is beginning to bite back. Time for mature talk and grown up presentations and introductions. I think there would've been a lot less blood in the water if Sotomayor would've been introduced as a professional, standing or falling on her judicial history and intellectual qualifications/achievements and not this Hollywood razzmatazz of background, sob story, etc. Why did they feel it is necessary to do that? Because she's a woman or a Latina? Didn't they think that her own qualifications and achievements as a lawyer and judge would be sufficient?

The fools... I think it's time for more substance and less show. It would serve some people well from now on.

I guess I'm off on my own rant here. I'll just retreat back in my nihilist armchair.

Darren Lenard Hutchinson said...

Hi, Aeneas. You ask great questions. As I said in another post, I certainly would not have used the "empathy" language. I suspect that some of the "guys" in the White House told him to use it in order to capture the attention of "rank and file" women and Latino voters (and others who care about identity).

Perhaps Obama underestimates the level of racism and sexism in society. It does not seem like race is a big issue for him, and gender is only in very "formal equality" ways. I do not see him as an "identity politics" person - except to win elections. But you're right: Using the empathy card with a woman of color begs for spewing and drama.

Sotomayor has not sat on any highly controversial cases. Most people believe that controversy is an inherent part of judging, but it is not. The SCT takes 1% of appeals; therefore, it has the opportunity to pick very interesting issues for which there is strong disagreement. Maybe they felt it was more interesting to discuss her "background" rather than her very solid rulings on challenging, but not exacting issues. At some point, I suspect people will having nothing left to do but examine her rulings. The SCOTUS blog is really the only major source that has combed through all of them. Most commentators focus on Ricci -- the only "controversial" ruling in her long career as a judge.

gcotharn said...

Aeneas asks a good question, and you touch on the correct answer: politics. Judge Sotomayor's nomination will help Pres. Obama be re-elected.

Shifting topic ... to the video of Alito:

We ought not confuse arguments.

You are arguing that empathy is tied into the originalism vs living constitution argument.

However, Greenwald and Kos are using the Alito video to fight back against criticism of Sotomayor's statement that a Latino woman would make better decisions than a white man. Greenwald and Kos are misleadingly claiming that Alito's references to his background equate to Sotomayor's statement that a Latino woman would make better decisions. Alito does reference his background, yet makes no statement or inference that his background allows him to make better decisions than, for instance, a Latino woman.

I find the skewing of Alito's statement by Greenwald and Kos to be ironic, and even despicable. Consider: Sen. Obama voted against nominee Roberts b/c Obama claimed Roberts lacked sufficient empathy. Nominee Alito was being similarly accused of having insufficient empathy(if not by Greenwald and Kos, then definitely by some of their friends). Sen. Coburn therefore invites nominee Alito to talk about his background, to display empathy, to display his human side. In his testimony, Alito is specifically attempting to show his humanity.

A few years later, Greenwald and Kos misrepresent Alito's testimony as being comparable to Sotomayor's(yes, racist and sexist) assumption that a Latino woman would make superior decisions to a white man.

I'm not saying Sotomayor is racist. I doubt she harbors racial hatred in her heart. However, she made a blithe assumption which does not reflect well on either her intellectual judgment or her mature understanding of human nature.

Darren Lenard Hutchinson said...

Gcotharn - Have you read Sotomayor's entire speech? There are so many sites, including this one, that analyze it in context (like the context you seek to wrap around Alito). Sotomayor was addressing the question of identity and expereriences in a particular context. The broader thrust of her analysis seeks to show that it is difficult to erase background --- and Alito even confirms this.

And raising the originalism/nonoriginalism argument just does not work for me. Both sides go back and forth on the types of intepretive tools they use. And originalism is subject to manipulation because, typically, people who employ this mode of analysis look back to history to find ideas to support the outcome they seek in a current case. The conservatives are not immune from this.

A key example is affirmative action. The Equal Protection Clause by its very language does not even apply to Congress. Also, Congress is given the textual authority to pass legislation remedy violations of equal protection. Furthermore, the same Congress that drafted the Fourteenth Amendment passed laws that provided "race conscious" relief to the former slaves (creation of schools, etc.). Yet, today's conservatives treat the Equal Protection Clause as a blanket prohibition of almost any use of race, and they treat policies passed by Congress and the states the same way (despite Congress having greater textual role in remedying discrimination).

The conservative Eleventh Amendment jurisprudence also departs significantly from the text and historical understanding of the provision. The conservatives have turned this simply worded (and uncommonly narrow) provision into a broad barrier to civil remedies.

The originalism canard has very little crediblity.

gcotharn said...

I'm not seeking to argue originalism vs. living constitution with you. On this subject, I am a student who takes in your opinions and allows them to marinate.

I do think you are making a different point from Greenwald and the Kos people.

On your recommendation, I will read Sotomayor's entire speech. I hate when statements are jerked out of context.

Darren Lenard Hutchinson said...

Hi, GC. Thanks. Sorry if I misread your point about original intent. Several people have tried to parse Alito and Sotomayor by saying at least conservatives interpret the constitution even if they are empathetic, but that is a distorted analysis. Both sides interpret the constitution.

I strongly believe that the quote was taken out of context. I have analyzed the speech myself on this blog. Media Matters also has a working list of the popular distortions. The "policy" comment, for example, was competely taken out of context. She was basically comparing the court of appeals to the district courts, and he "policy" reference in that context means that the court of appeals has a deeper impact on the law than the trial courts. No wonder you never see the entire discussion.

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