Wednesday, June 24, 2009

Republicans' Latest "New" Strategy on Sotomayor Is Another Loser

After initially describing Judge Sonia Sotomayor as a racist, intellectual lightweight, and a judicial fireball, Republicans have struggled to find a consistent and workable strategy to oppose her without causing serious political damage to the GOP. Opinion polls continue to show that a majority of the public supports Sotomayor's nomination to the Supreme Court. More ominously for Republicans, polls also find that Latinos overwhelmingly support Sotomayor's prospective appointment.

Moreover, assuming the accuracy of a recent Daily Kos/Research 2000 poll, Latino support for the GOP has declined from an already abysmal level since conservatives began attacking Sotomayor. The poll indicates that only blacks have a lower opinion of the Republican Party than Latinos. Just 3% of blacks and 8% of Latinos view the party favorably, while 31% of whites hold a favorable opinion of the GOP. If the situation does not improve for Republicans, Obama will win the presidency again, and Congressional Democrats will perform well in midterm elections.

The Republicans' Evolving "Sonia Strategy"
Because the Republicans' early attacks on Sotomayor failed, they have repeatedly attempted to retool their approaches. For example, Senate Republicans have distanced themselves from statements by conservatives, like Rush Limbaugh and Newt Gingrich, which described Sotomayor as a racist. Some of them have also described personal meetings with Sotomayor in positive terms. Furthermore, several Senate Republicans have emphasized the need to scrutinize her judicial record, rather than focusing on snippets of text from speeches she has delivered.

Now, with Sotomayor's confirmation hearings scheduled to begin on July 13, Republicans have possibly finalized their strategy. According to the Associated Press, Republicans will question Sotomayor regarding her "commitment" to the Second Amendment, property rights, and equal protection. While a focus on legal issues would represent an improvement over earlier discourse surrounding Sotomayor, this tactic will likely fail to raise any serious questions regarding Sotomayor's fitness for the Supreme Court or any major political opposition to her nomination.

Sotomayor's Judicial Record Does Not Warrant Opposition to Her Nomination
The new Republican strategy will likely fail because Sotomayor's judicial record does not warrant opposition to her nomination. Sotomayor has served as a federal judge without controversy for fifteen years. If she were an incompetent ideologue who did not care about the Constitution, a public record documenting this narrative would already exist. Accordingly, Republicans will have to make strained arguments as they try to raise questions about Sotomayor's commitment to the Constitution (which is an ambiguous concept).

Furthermore, the specific issues that Republicans have isolated as potentially raising questions about Sotomayor (the right to bear arms, property rights, and equal protection) do not present any real problems when viewed with intellectual honesty and nonpartisanship.

Specific Issue: Right to Bear Arms
Conservatives have already attempted to portray Sotomayor as a judge who does not respect the right to bear arms. They specifically cite an opinion issued by a 3-judge panel of the Second Circuit (Sotomayor sat on the panel) which concludes that the Second Amendment does not create an "individual" right to bear arms, but that it empowers "states" to establish militias. Although conservatives and pro-gun organizations and individuals oppose this conclusion, legal historians, judges, and legal scholars have debated this specific question for over a century.

Last year, the Supreme Court finally resolved this debate with its ruling in District of Columbia v. Heller. In a very divided, 5-4 opinion, the Court found that the Second Amendment creates an "individual" (rather than a "state") right. Nevertheless, the fact that four sitting justices on the Supreme Court reached the same conclusion as the Second Circuit panel means that Sotomayor's acceptance of the state right position cannot make her unfit for a position on the Supreme Court.

Subsequent to the Heller decision, another 3-judge panel of the Second Circuit, which included Sotomayor, held that the Second Amendment only constrains the federal government, not state governments, and that outside of the Second Amendment, the Constitution does not secure a "fundamental right" to bear arms. Conservatives have engaged in extreme distortion and hypocrisy in their critiques of this ruling.

It is abundantly clear that the specific liberty interests contained in the Bill of Rights were created to limit the federal government -- not the states. This has been the uninterrupted doctrine of the Supreme Court since the 1833 ruling in Barron v. Baltimore. Also, the text of the Bill of Rights supports this conclusion. The First Amendment, for example, explicitly prohibits "Congress" (not the states) from impairing freedom of speech and religion. Furthermore, the Bill of Rights was proposed and ratified because anti-federalists feared that the proposed Constitution, which would significantly expand federal power, would permit the national government to abuse individual liberty. The Bill of Rights served as a political compromise designed to secure ratification of the Constitution in light of strong dissent in several states.

Despite this clear history -- and conservative rhetoric about the virtues of following original intent -- Sotomayor's opponents have criticized her for agreeing that the Second Amendment only constrains the national government. The Supreme Court has, on a case by case basis, concluded that many of the rights contained in the Bill of Rights are "incorporated" by the Due Process Clause of the Fourteenth Amendment -- which makes them enforceable against the states. Neither the text nor the history surrounding the Fourteenth Amendment, however, supports this conclusion. Also, most of the Supreme Court rulings that expanded rights through incorporation were issued by the Warren Court, which many conservatives believe symbolizes the horrors of "liberal" "judicial activism." Nevertheless, conservatives fault Sotomayor for declining to emulate the Warren Court and conclude that the Second Amendment is an incorporated right.

Conservative opposition to the Second Circuit ruling is even more problematic in light of the fact that it strictly follows existing Supreme Court precedent which holds that the Second Amendment is not incorporated. Although this case law is dated, it is still "good law." Finally, a panel of three well respected conservative judges in the Seventh Circuit recently followed the lead of the Second Circuit and refused to hold that the Second Amendment is incorporated. The conservative Seventh Circuit ruling specifically cites the Second Circuit decision that conservatives have sued to brand Sotomayor as a dangerous opponent of gun rights.

Remaining Issues and the "Real Deal"
The other issues that Republicans plan to use in their "Sonia Strategy" have been dissected elsewhere. The constitutional law blog Text and History, for example, offers an erudite two-part analysis that powerfully rebuts conservative efforts to portray Sotomayor as hostile to property rights. Many other blogs, including Dissenting Justice, have addressed Sotomayor's case law and personal opinions regarding race and sex.

Despite the foregoing legal analysis, politics probably explains better than anything else why the Republicans' latest Sonia Strategy will not work. Democrats control the Senate. The public supports Sotomayor. Senate Democrats will support Obama on this issue. Barring any unexpected developments, this case is almost closed.

For an extensive listing of links to commentary regarding Sotomayor on Dissenting Justice, CLICK HERE.


Anonymous said...

Dear Mr. Hutchinson: What do you believe:

a) that the 14th Amendment doesn't incorporate any part of the Bill of Rights on the states or
b) the 14th does incorporate at least some of the Bill of Rights on the states.

Both arguments are defensible. But if you buy a) so much for MIRANDA, NEW YORK TIMES v. SULLIVAN, and MAPP, as well as the present push to incorporate the Second Amendment. That's a high price. You could argue that oops, those three cases were mistakes, but they've been done, and conservatives can't object because of stare decisis. But they can't get the Second incorporated because, heehee, it won't fit under original intent.

In many of your previous posts, you've alluded to the McCLESKY case. It resonates strongly with you, and no wonder. Death penalty cases often do. From what I've read of McCLESKY (Edward Lazarus's CLOSED CHAMBERS) Warren McClesky's case was troubling, for McClesky personally. But what stopped the conservative members from considering it? Their conviction, well justified, that the liberals were using bad faith not only in McClesky's case, but in all death penalty cases.

So too here. Incorporate or not. Either position is defensible. But recognize that incorporating the Bill of Rights means swallowing the Second, and a Second that gets the same kind of liberal construction complete with penumbras and emanations that Justice Douglas found so easily when he wanted to revise the Constitution to his own notions.

Given that the HELLER case posits the "strong" version of the Second, though only to federal cases, it is grotesque to argue that the Second exists in two versions, a strong one for DC and other federal enclaves, and a weak version for the states. It's even more grotesque when you consider that abortion, a word not mentioned in the constitution, is somehow a national right, not to be violated (for all the paranoia of NOW, and despite the colossal battles, which have had the same effect on the federal judiciary that Verdun had on the French, it is still legal to have abortions anywhere in this country in a way that would have been unthinkable so recently as the 1950s), but the right of "keeping and bearing arms" explicitly mentioned in the Second, somehow doesn't really mean keeping and bearing. That's not good faith arguing, that's "anything to win."

You write that "Neither the text nor the history surrounding the Fourteenth Amendment, however, supports this conclusion." Cite something please. I will cite SIMPLE JUSTICE by Richard Kluger, which describes the sizable efforts Felix Frankfurter and one of his clerks (Alexander Bickel, I think) made in the Court's vacation in the summer of 1952, to determine if the 14th "incorporated." Their conclusion: inconclusive. It might incorporate; it might not. I should think (correct me if I am wrong) that such a conclusion would suit your general beliefs. If a constitutional text is ambiguous as Frankfurter thought the 14th was, it would the Supreme Court a pretext for rolling up its sleeves, bawling Outa the way everybody! and making the nation over!

Sincerely yours,
Gregory Koster

You write

Darren Lenard Hutchinson said...

Greg: What I think about the validity of incorporation does not disturb the fact that: 1. Heller does not immediately render the Second Amendment a restraint against state power; 2. Existing Court precedent declines to deem the Second Amendment incorporated; and 3. The Second Circuit followed that existing precedent, which angers conservatives.

A majority of the Supreme Court has never embraced "total incorporation," but has instead, held that certain protections are incorporated on a case by case basis. Kluger is stretching reality if he concludes that the text or history supports TOTAL incorporation or that it is mixed. Even if "something" in the history supports it, this is so minor as to be irrelevant. The overwhelming weight of authority provides no support for the argument. Accordingly, conservatives want courts to utilize incorporation; this is fine, but it is also the height of hypocrisy, given conservative rants about the Warren era.

Ultimately, I would agree that SOME of the rights are, as the Court has held, "implicit in the concept of ordered liberty," which opens the door to courts deciding what those rights are -- and which means that if a judge declines to find that a right is incorporated, this cannot mean he or she lacks a commitment to the constitution, as conservatives are foolishly attempting to argue with respect to Sotomayor.

Also, as to your dramatic description of the implications of not deeming the Second Amendment incorporated ("grotesque"), consider the following. First, conservatives adamantly resist the notion of extending the same political rights to residents of DC that people have in states. Why? Because DC is a federal district, not a state, and the two concepts are constitutionally distinct. Accordingly, it is hypocritical to raise the inequality of rights in this context. Conservatives judges frequently argue that there is a sharp distinction between what is "federal" and "local" when they vote to slash federal legislation providing remedies for victims of discrimination and other practices. But if they are correct, then conservatives must live with the outcome of this distinction - whether or not it leads to conservative outcomes.

Also, not all rights are actually incorporated, as your argument suggests. The Seventh Amendment, for example, is not. This means that parties in federal courts could have greater rights with respect to jury trials than people in the same state with identical claims, but who are in state courts. Is this "unfair" too?

Finally, your discussion of McCleskey defies the record I have analyzed several times. Scalia wrote a memo saying that he did not need any additional proof about juries and prosecutors being motivated by race. Instead, he treated their racism as "ineradicable," which means he simply turned a blind eye to the problem. This is a horrible abdication of the judicial role. If the Ricci decision is terrible because it excuses race-based decision making, then Scalia's vote against McCleskey is deplorable because it excuses race-based decision making in a life or death situation (not in a job promotion setting).

Also, Justice Powell, who authored the decision, said he later regretted it, which indicates (as one would expect) that he was on the fence about the subject. Regardless, a fear that liberals on the Court supported abolition of the death penalty cannot excuse the ruling which stubbornly refused to remedy racism in a life or death setting.

Thomas said...

Oh,I love breathing the heady, dignified air of constitution law, lol. Fascinating points prof, particularly about the Bill of Rights serving as a constraint on Federal power and Santomayor's ruling that the right to bear arms applies to states rather than indiviudals. That would make perfect sense.

A couple of months back I read The Invisible Constitution by L.H. Tribe. I find constitution law fascinating precisely because its so inconsistent and contradictory.

Darren Lenard Hutchinson said...

Well, I am not sure I would describe constitutional law as inconsistent and contradictory, but rather as amorphous, nuanced, complex, and subjective. I completely share you view that the constitution is "fascinating," and I find it fascinating because it is so challenging and complex.

As for the Second Amendment "state" argument, the text itself gave rise to the competing versions. The right of "the people" to bear arms is connected explicitly to the understanding that "a well regulated Militia [is] necessary to the security of a free State" (not to individual liberty). Accordingly, many historians view the amendment as protecting state interests, not individual interests. You should read Heller if you want greater sense of the terms of the debate.

Anonymous said...

Dear Mr. Hutchinson: No, you are misreading Kluger. Kluger writes nothing on incorporation. Instead he REPORTS that Frankfurter-Bickel did a great deal of digging on the legislative history of the 14th and came up with this answer: it's inconclusive. The 14th might allow incorporation, or it might not. We (F&B) can't tell. The value of this is that Frankfurter-Bickel were a pair of intellectual heavyweights who did a lot of work and came up inconclusively. I repeat, I should think this result would suit your notions of what courts can do, since there is no explicit command in the 14th either way.

Please, don't mention Cardozo and his dam "implicit in the concept of ordered liberty." Such phrases are mere rubber, to be stretched in whatever direction suits the felt needs of the moment. Let me put the question to you again:

a) I'm fine with BARRON (the Bill of Rights only applies to the feds, not the states)
b) You do not agree with that, and would use the 14th to incorporate at least some of the Bill of Rights onto the states. Again, please correct me if I am misstating your position.
c) What, then, is the principle you would use to incorporate? The Bill of Rights in toto? If not, why exclude some amendments and not others?

The way incorporation has proceeded should offend everyone who likes orderly procedure and system. For fifty seven years after its ratification, nothing was incorporated. Then, BOOM! GITLOW incorporates the First Amendment more or less out of a clear blue sky. If you can tell what Sanford was thinking when he wrote it, you are doing better than I. he should have had those teeth pulled five years earlier... Another twetny two years of somnolence and then that maniac Hugo Black starts howling for swallowing the Bill of Rights whole. He never succceeds, but starting with MAPP in 1961, the Court starts eating the Bill of Rights, at least the "liberal" parts. No rhyme nor reason to why the various chunks are swallowed. So: come back to the question: What is the Hutchinsonian principle to decide what parts of the Bill of Rights (or, for that matter, any other Amendment) are to be incorporated?

Your argument that SS is only following precedent in declining to incorporate would be more impressive if you acknowledged that she had a choice: she could have gone with the Ninth Circuit and said yes, but went along with the Seventh and said no. This split in the circuits makes it likely that the Supreme Court will have to step in. It also has the peculiar, amusing result that you have your arm around Dick Posner, saying what a sharp fellow Dick is, while I have mine around Harry Pregerson, saying what a scholar Harry is. Not the result most neutral observers would expect from either of us...

Really, you are getting straw all over your blog with your assertion:

"First, conservatives adamantly resist the notion of extending the same political rights to residents of DC that people have in states. Why? Because DC is a federal district, not a state, and the two concepts are constitutionally distinct"

Not at all. The people of DC have an easy statutory solution to their problem: petition Congress to admit DC to the Union as the 51st state. Congress has the power to do this, and once it does admit DC, residents of DC would have two Senators and a Representative just as the other states do. No more problem. The objections are political a) the conservatives know dam well that a political culture that produced such zanies as Marion Berry would introduct huge amounts of corruption into the national body politic. Worse, it would be liberal corruption and b) the liberals would be miffed at a DC state government that would have its elbow in Congress's eye all the time.

These two sordid reasons are the political "why" that prevents DC residents from being represented. Regrttable? Likely so, but no right wing conspiracy here.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Greg: I suppose it is very difficult for you to admit that you want the court to depart from the text of the constitution and deem gun rights incorporated. You have previously stated a deep hostility to judicial review -- well selectively, of course (you want the courts to invalidate affirmative action and gun laws). But you now realize that in order for gun rights to apply throughout the states, this will require incorporation. In order to appear intellectually consistent, you are arguing that the record on the issue is "inconclusive," citing to Kluger (a journalist) who analyzed Frankfurter and Bickel (who is not even famous for his contributions to the incorporation issue).

Calling Bickel and Frankfurter "intellectual heavyweights" does not change the following: 1. The text of the constitution does not deem the Bill of Rights incorporated (not even under a very liberal reading); 2. The Supreme Court has never embraced total incorporation; 3. Most of incorporation was accomplished via liberal rulings during the Warren era, which conservatives view with great disdain; 4. Despite their prior hatred of incorporation, conservatives suddenly embrace it because it could expand gun rights; and 5. Incorporation makes the Fourteenth Amendment redundant because it incorporates the due process clause and adds a due process clause as well. This history is not inconclusive, as Kluger argues. The bulk of academic works on the subject reject total incorporation; recent works (Amar, etc.) try to shift the debates, but even Amar (as Sunstein argues) cannot find a piece of history that embodies his very complex ideas about incorporation.

I also think it is interesting that you claim that the Second Circuit had a "choice" to find the Second Amendment incorporated, even though existing precedent reaches the opposite conclusion. It's actually laughable that you cite the Ninth Circuit as the court for the Second Circuit to emulate, when it is highly doubtful that you normally embrace that court's ruling on rights. The Ninth Circuit decided to defy Supreme Court precedent and purport to overrule it, but Court precedent counsels against lower courts ruling in such a fashion. Accordingly, both the Second Circuit and the highly conservative Seventh Circuit held that the Supreme Court must overrule its own decision on this issue.

Furthermore, I am not embracing the Seventh Circuit or the Ninth Circuit. Instead, I am arguing that conservative opposition to Sotomayor based on her gun rulings is preposterous given the status of the law in this area. The fact that esteemed conservatives reached the same conclusion as she did (but do not provoke the ire of conservatives) proves my point about the law.

Finally, conservatives have been rejecting voting rights for DC residents since Emancipation (for obvious reasons). The Berry-corrpution argument is simply a blatant pretext for conservative opposition to more liberal votes in Congress. If corrpution were enough to exclude states from Congress, then Congress would be empty.

Also, the legal arguments conservatives make in this area distinguish states from federal districts, and you have not refuted that point. Furthermore, you never addressed the federalism cases that make the same point. When gun rights are at issue, conservatives want to collapse the state-federal distinction, but when other issues (like age discrimination and violence against women) are involved, conservatives treat this division as something sacred. This is unprincipled and hypocritical -- just like the opposition to Sotomayor who refused to engage in judicial activism and overrule existing Supreme Court precedent.

liberal dissent said...


Wait, you're saying that if DC residents want an easy way to obtain the rights inherent in statehood, they should petition Congress, who will then...ignore it. That's "easy"?

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