The Sotomayor Reflex

God, I hate politics. It really does make people stupid, especially those whose tribe is out of power. When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.

Like Damon Root, I’m in favor of libertarian judicial activism. But I know that Barack Obama is no libertarian, and I knew he wasn’t going to nominate Kozinski or Posner. Too bad! So I was hoping for a relatively centrist liberal who sees some merit in libertarian arguments, especially about the protection of economic rights. As far as I can tell, there is nothing especially worrying about Sotomayor. She’s obviously super-qualified. And from what I’ve read, she seems like a highly competent, fairly moderate liberal who sticks pretty close to the law (which nobody really likes when they don’t like the law!) and is perfectly willing to side with Republican-appointed judges when that seems to her the right thing to do. What are people going batshit crazy over? I don’t get it. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons. God, I hate politics.

Author: Will Wilkinson

Vice President for Research at the Niskanen Center

70 thoughts

  1. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.Because they can't help themselves. It's their nature.

  2. Adam Gurri – Collector of Stories. Co-founder of Sweet Talk. Follow me on <a href="">Twitter</a> or at <a href="">my personal blog</a>.
    AdamGurri says:

    On the other hand, it's pretty amazing to see how much information has been put up on Wikipedia in just a couple of days. Helped me feel satisfied that the outcry around this nomination is, as you say, a knee-jerk partisan reaction. You could probably have nominated Posner and still we'd see reactions of this kind.

  3. “When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.”Let's see, because YOU knew nothing about her judicial philosophy or her actual record as a judge, you'd think WE'd wait and that people went crazy on cue. Hmm, just because you knew nothing doesn't mean others haven't been researching since it was rumored way back that she was in the running.

  4. Right you are again, Mr. Delong… ahem, pardon me, Wilkinson. Stay tuned tomorrow, loyal readers, when our host tackles the question of preferred disposal methods for morally odious red state voters: Pits of molten lava, or dragging by wild horses? The debate continues.I also hate politics. Apparently it turns more than just Republicans into morons.Zdeno

  5. Weird post, Will.In a way your post seems like an unintentional microcosm of the the situation you are complaining about.

  6. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.The fact that Republicans would have objected to anyone Obama nominated has no bearing on whether or not she really does line up with the faction of the Supreme Court that I don't like. Under the influence of Hasnas' Myth of the Rule of Law, I'm not going to pretend that I object to Sotomayor on the grounds of incompetence or anything but my own political preferences. She's on the side of a political faction that I don't want in charge of the Supreme Court, or any other part of the government. And yes, that opinion lost the last election, but since I'm democraphobic anyway, can't I still be upset?Like you, I hadn't heard the name Sotomayor before the nomination was made. Inspired by your post, I spent the last 5 minutes finding out some stuff about her. Wikipedia (thanks, Adam) tells me that in NY Times v. Tasini, when the Supreme Court made its ruling, “two dissenters (John Paul Stevens and Stephen Breyer) took Sotomayor's position.” In Malesko v. Correctional Services Corp, when the SCOTUS decision came down, “Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling.” Those are the only two cases where the decisions are broken down by Justice, but the best heuristic I have for making 30-second decisions is telling me that she's at least at the median of a group of judges I don't want on the Supreme Court.The only argument against the vitriol, really, is that people shouldn't act so surprised. Obama won the election, and this is exactly the kind of Justice we should have expected him to nominate. Your initial accusation is correct, I haven't done the in-depth research to firmly support my impression that she really is closer to J. Stevens than to CJ. Roberts, but my opinion doesn't make enough of a difference for in-depth research on Supreme Court nominees to be worthwhile.

  7. Having stated at the outset that politics makes people stupid, you immediately proceed to prove it. Unlike the thinly-sourced opinions of others, your characterization is refreshingly free of facts. Good job.

  8. I don't think anyone is objecting to people issuing calm, reasoned disagreements with her politics. It's the crazy silly stuff like fighting over how to pronounce her name that makes people say “God, I hate politics.” I wish I had made that up.

  9. First of all, you seem to be one of several whose reading comprehension failed when reading this post. “Going crazy” is not analogous to “be[ing] upset.” Just isn't. Meanwhile, vitriol is an argument against itself; people shouldn't act that way in general, and have no excuse without significant provocation. Will's position clearly seems to be that whether or not you believe that Sotomayor is someone who you would like to see on the Supreme Court personally, that she's pretty middle of the road to get outraged over.Consider it like the tea parties. I would be the first to say that taxes in general are too high, and that all taxes should be lowered if not eliminated. I also think that in the scheme of things, it is pretty stupid to act as if a 3% increase in marginal tax rates is something which demands revolt. Picking and choosing when to stand on principle isn't standing on principle at all; you aren't a democraphobe if you are only upset by the results of democracy when the side representing the faction of the Supreme Court you dislike wins.The argument against the vitriol is that it demeans the person(s) who engage in it, and it discourages rational people from considering the quality of your arguments. It isn't that Sotomayor is so wonderful that you can't possibly disapprove of her becoming a Supreme Court justice. It is that the vitriol directed against her nomination helps ensure that a Posner will never be nominated, and that we will see many more Sotomayors (and Alitos) instead.

  10. I find your reaction baffling. She's a liberal judge, competent but not much more than that, who occassionally acts lawlessly (as in Ricci–I'm referring not to the decision itself, but to the lengths she and the rest of the panel went to avoid giving reasons for their action and to avoid scrutiny). I think folks on the right are trying to treat her as Alito and Roberts and Thomas were treated, except that they're treating her with more respect.

  11. Right on brother. Limbaugh had her pegged as a nominee way back in 1997. She been on the short list before the inaugaration. You don't think research was done on all sides beforehand.I don't remember too much substance of her judicial qualifications or decision coming from Obama's mouth during her nomination announcement. Her personal story was supposed to win us all over by itself, I guess.

  12. I'm not aware of anyone having gone crazy over the nomination, and I've been reading National Review. So I decided to defend what I see as a very common reaction to the nomination among conservatives, namely being upset. Maybe my reading comprehension isn't great, but I go mostly by tone. The tone of Will's post seemed to imply that if people would just pay some attention, read up on Sotomayor a bit, and stop being so gosh-darned partisan all the time, they'd realize that she's just a moderate, trying like everybody else to apply the law fairly in this crazy world. I'm not outraged, but my assessment of Judge Sotomayor is that she is about as liberal as a reasonable person might have expected from Obama at present, which is to say, fairly liberal.I was probably too careless with words in the last comment, and don't mean to say that those who oppose Sotomayor are fully justified in attacking her background and character; but that isn't the kind of stuff I've actually seen from anyone. The main objection that I tend to see is that she would become a dependable member of the Supreme Court's liberal bloc. That is the real question at issue here. And despite Will's attempt to rise above partisan bickering, what I've seen so far indicates that those who object on those grounds are correct.One more thing:you aren't a democraphobe if you are only upset by the results of democracy when the side representing the faction of the Supreme Court you dislike winsThis isn't really the forum for this, but I do disagree. Democraphobia is the fear that democracy will fail to hit on the right answer, which of course assumes that you know what the right answer is. Yes, I'm upset when democracy yields the wrong answer, and that happens often. Not all the time, but often.

  13. If you aren't aware of anyone going crazy over the nomination, I don't think you can have been looking too hard. I mean, John Yoo castigating her intellect? The ridiculous concern of Greg Mankiw that his grandmother would disapprove of Sotomayor's savings rate? The diatribes about Puerto Rican food?Beyond that, while I'd suggest that Sotomayor is a “moderate”, I'm kinda baffled as to why anyone would think that Will would assume that moderates are good. But it is fairly certain she'll become a reliable member of the Court's liberal bloc, entirely certain that if the President wasn't going to nominate someone who would be that Souter would not have retired, and something which we all knew long before the name of the nominee was chosen.I'll presume that Will won't mind if we allow the conversation to become a tad freewheeling and point out that in general but in particular on Will's blog, I'd define “democrophobia” as the Bryan Caplan “Myth of the Rational Voter” type thinking – that democracy, for a variety of reasons, fails to produce an informed or thoughtful electorate – a problem no matter who wins. Defining the fear that your own viewpoint may lose if put to a vote as democraphobia strikes me as a significant stretch.

  14. So I was hoping for a relatively centrist liberal who sees some merit in libertarian arguments, especially about the protection of economic rights. As far as I can tell, there is nothing especially worrying about Sotomayor.

    I'm sorry, you don't think that the Didden v. Port Chester decision is especially worrying? I can see saying that it isn't enough by itself, but I would think that it would be worrying at least.She pretty blatantly sided with a politically connected developer getting a town to use eminent domain on a plot of land because the owners wouldn't pay extortion. The decision went far beyond Kelo, because even under Kelo the majority agreed that mere pretext was not sufficient to condemn. The pretext here was that the politically connected developer wanted to build a Walgreens instead of the CVS that the property owners would build.I'm sure that there are other cases in her record, but Didden really is especially worrying to me.

  15. Will, do you respect the opinions of libertarians like Richard Epstein and Ilya Somin?They certainly came out of the gate attacking her, and specifically find something very troubling in her total lack of openness to the “merit in libertarian arguments, especially about the protection of economic rights.”For me, Didden is disqualifying. Granting that Kelo was a recent precedent that was binding, the decision went clearly beyond what even Kelo required.

  16. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.

    Not just Republicans, though. Libertarians.In fact, you cite Damon Root's article. But you didn't site his “crazy” instant reaction to the nomination.

    “Damon W. Root on Why Libertarians—and anyone who favors limited government—Should Be Worried About Sonia Sotomayor, President Obama's Supreme Court NomineeWhen it comes to the Second Amendment and race-based preferences, however, Sonia Sotomayor has a decidedly illiberal vision of constitutional law….As a respected jurist with an impressive legal resume, Sotomayor appears just as qualified to sit on the Supreme Court as any recent nominee. But from the standpoint of individual liberty and limited constitutional government, there are significant reasons to be wary of her nomination.”

    The “reflex” was not limited to Republicans and conservatives. Within instants of her nomination, prominent libertarians were attacking her. Mostly because they had already done research on her since she had been shortlisted for a long time.Will, at the very least, consistency begs that you attack libertarians as well. If you stand with Damon Root's expression of what he wants in a judge, you should acknowledge that he attacked her immediately as well.

  17. This post seems to want to be two things at once – a complaint about some of the hysterics about Sotomayer, and a defense of the nomination itself. The first topic is banal – OF COURSE there's silly hysterics. The dems are just as quick to do it when they don't get their way. Pointing out that straw mans and ad hominems are silly doesn't buy you any great place in the history of commentary.The second point deserves discussion and elaboration and gets none. Best to post on this one when you've done the research and have a grounded opinion. But even if you're just giving an impression – surely the fact that she's an Obama nominee and Obama is no great friend of libertarians should make you rather wary than cautiously accepting?

  18. “And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.”Have you read any of her decisions? Have you even taken the time to read the commentary you find so repellent? Of course not. Better to demonize republicans rather than engage with their arguments (which are very similar to those of libertarians like Root and Epstein). “She’s obviously super-qualified.”Wow, not just qualified, but super-qualified! Who knew. I guess we can add Jonathan Turley and Jeff Rosen to your list of morally odious partisans.From what I've read, she sounds like a minimally competent left-liberal who has no respect for property rights and who seems to think that ethnicity is an epistemic category.But obviously I'm just a crazy partisan hack who can't see the “liberaltarian” possibilities of this pick.

  19. Craig? She's a judge. You might not like the laws. But it's her job to read 'em. And figure out what they apply, from time to time. Lots of folks are engaging the Gingrich/Tancredo etc arguments, which boil down to “I don't like the decision”. Which is fine. But that's not a criticism of the judge. More typically they're a criticism of the law, and a desire for an interventionist judge to undo the “legislative will of the people”. Funny. Suddenly out of power in the executive, and the legislature, the GOP finds comfort in the prospect of an interventionist judge.

  20. As a white person, I have better experience to judge that she is a moron and that you are also a moron for calling Republicans “morally odious morons”.That statement of hers is a big reason people are jumping on her. If a white person said something similar, the MSM would be screaming their heads off.

  21. “it is pretty stupid to act as if a 3% increase in marginal tax rates is something which demands revolt.”Please shut up. That is a Leftist canard and if you don't realize it, then you are retarded.The tea parties weren't a response to minor tax increases; they were a response to huge deficit spending which will result in huge tax increases in the future. Here is a picture since you are either a liar or retarded:

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  23. Please suck my balls.I don't need you to tell me what the tea parties were. I assure you, I'm both a liar and retarded, but I'm not wrong about the bullshit that consumed those rallies.

  24. Sir,I assume then that you're not the sort of person who makes the argument that “these people can't complain about proposed spending since they didn't do so about the somewhat smaller amount under Bush.” After all, I think there's a logical contradiction between saying that they're complaining about too little (but you oppose more significant tax increases) and the previously mentioned argument (where people didn't complain about a smaller increase in spending.)In any case, for my part, it's not the 3% marginal tax rate increase. It's the fact that even in 2012-2019, deficits are projected by the CBO, under full recovery, to be so much larger than even under Bush that it would take a 10-15% marginal tax rate increase to reduce them to Bushian levels. (Assuming that Obama's promise about only raising income taxes of the rich holds.)I also assume you also had equal disdain for antiwar rallies, which had equal amounts of bullshit, as indeed all protests do.

  25. Go fist your mother.Typical delusional fool living in his own head. Keep it buried deep in the sand and maybe you won't even notice what happens when Obama runs this country into the ground. I know exactly what will happen.

  26. Irony is lost on people like you. Actually any intelligent thought is lost on people like you.Maybe it's because of your race. You just don't have the proper experience to see things.

  27. I hereby call a moratorium on sexual imperatives. I'm serious. This kind of juvenile crap chases off the intelligent commenters.

  28. I'd like to begin by thanking you for the courteous nature of your reply; my rudeness above was my attempt to fight fire with fire.At the end of the day, I believe that inconsistency, for whatever reason, in the level of public protest of increased spending and debt between Bush and Obama is perfectly reasonable. But the lack of a clear, well-defined, and important cause for the Tea Party protests created the same circumstances which led me to oppose the anti-war rallies; namely, that you end up conflating your cause and endorsing the platforms of idiots who make you look ridiculous. What dominated the coverage of the anti-war rallies? International ANSWER and their anti-Israel agenda. What dominated the coverage of the tea parties? The birth certificate crazies and their anti-Obama agenda. Even discounting the ridiculousness of associating a protest with a slang term for a form of sexual activity, the choice to embrace revolutionary rhetoric (at a time when the minority party was also sending out some of its elected representatives to talk about secession) overwhelmed any message about deficit projections by the CBO. Mass protests are almost by definition incapable of being about wonky details like that.At the same time, some level of consistency matters. Spending increases may have been lower under Bush (although when military spending is included, I doubt this). But just as the Democrats deserved little credit for their protests of Republican corruption from 2001-2009, Republicans deserve little credit for discovering the evils of deficit spending now. Railing against legitimate wrongs only in the interest of partisan goals is hypocrisy, and is perceived by most people as such. And while I'm not as chuffed about hypocrisy as most people, things like that matter in the political arena. But finally, I'll point out that the rhetoric has to match the outrage. Conflating an increase in the size of the Federal deficit or in marginal income tax rates to taxation without representation by a foreign king demeans the severity of the past injustice, the righteousness of the American revolution, and diminishes the virtue of those protesting against Obama's economic policies. Think of it like the impulse to name every tinpot dictator the next Hitler.

  29. “Conflating an increase in the size of the Federal deficit or in marginal income tax rates to taxation without representation by a foreign king…”Are you serious? You do realize that taxation is at a much higher level now than then?Maybe you should have attended a tea party so you would have had a clue why people are upset. They can actually do math and can see that huge tax increases are coming.I thought Bush was awful on spending and have been saying so for 8 years. Obama is worse. Mr. Hopey-Changey has brought nothing but more of the same and worse. After the Bush spending spree, people are beyond fed up and Obama is getting closer to pushing them over the edge.

  30. Taxation is at a higher rate now than then? You mean, taxes are higher now than they were under King George the Third?I'm sure that is true, assuming it is what you meant. I also know absolutely that the relative size of the tax burden between the two is absolutely irrelevant as a measure of relative injustice. The principle injustice of the taxes imposed by King George was that they were taxes imposed by a foreign monarch. Any argument short of “all taxation is theft” would consider that to be so, and if the argument is that all taxation is theft, than the relative size of the theft is also morally irrelevant.You seem to be conflating the position that the method of objection to Sotomayor or to the spending increases of the Obama administration are counterproductive to the mission of improving the caliber of Supreme Court nominees or decreasing spending with saying that Sotomayor is a good potential Supreme Court justice or that spending and taxes aren't ridiculously high. I agree that spending is far too high, and that taxes are far too high, and that those things are bad and should be stopped. Saying that the tea parties were and were certain to be ineffective if the goal was to reduce government spending and taxation doesn't mean that spending isn't too high, or that you and many other tea party attendees didn't believe that was the case under President Bush. It means that you failed to make that a significant part of your message to the public, and that is one of the reasons you failed to gain adherents or significantly move the public debate through your protest. Even if I were to stipulate that you were on the side of the angels in all cases, the fact remains that your side is emphatically not winning, both in the political arena, and in the hearts and minds of the citizenry. And winning matters.

  31. What's problem with Didden? Kelo and Didden are bad outcomes. They represent a taking by the state that takes a giant dump (although sexual imperatives are out, let me offer a little scatology) on property rights and individual liberty. But does the Didden opinion (or Kelo) rise to the standard of “bad law”. Which is the point. As legal findings I've not heard anyone describe a problem. The relevant section of the 5th Amendment reads: “ … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Now. There were elections to a legislature. That legislature passed laws. There is precedent about what the phrases “due process of law”, and “without just compensation” mean. The various dissents from the case (especially Thomas') agree that the outcome was bad and then argue that the court should ignore the precedents in it's ruling. In other words, the dissents argue to overturn laws passed as a consequence of a democratic process. Bad laws (from our POV) but expressions of the popular will nevertheless. And what happened? As a result of Kelo, lots and lots of (though not all) legislatures got busy and re-framed their eminent domain laws (roughly) along lines that property rights enthusiasts would applaud. Kelo and Didden both fall into a category of situations where state power is being deployed on behalf of one private group (a corporation) against another (some citizens).

  32. “if the argument is that all taxation is theft, than the relative size of the theft is also morally irrelevant.”…To use an analogy, then punching you once is the same morally as punching you 400 times. That's goofy. A higher level of taxation is more force than a lower level of taxation which makes it more immoral.I think you missed the point of the tea parties. Do you actually think people thought that by organizing a few times Obama and Congress would magically stop their drunken spending?Nobody thought that. It was an expression of outrage and a tool to let the politicians know that they are on notice. So when those tax increases do come and people get really pissed off, the politicians can't say 'well, we didn't know how angry you would be at a 60% tax rate'. Only the willfully ignorant will be able to make that claim.There is a good percentage of this country that does not want the Europeanization of America. There will be a strong price to be paid if the Left keeps pushing for it. They can move to their paradises of France and Canada. Liberty-loving Americans have nowhere to go and I warn against pushing them up against the wall.

  33. Leaving aside whether or not Sotomayor is the best woman for the job, it has been amusing to hear Rush Limbaugh and Tom Tancredo decry her alleged racism. “Morally odious morons” sounds about right.

  34. “Morally odious morons” maybe – but certainly morally inconsistent morons. They didn't have any problem with Larry Summers suggesting that men may be better at the hard sciences than women, for example. Sotomayer can think that Latinas are wiser than white men all she wants as far as I'm concerned so long as she understands two things: (a) even if her generalization is true, it's still the case that not all Latinas are wise and all white men fools and (b) the law should apply equally to all citizens regardless of relative racial wisdom, etc. If she understands these two things, then this statement doesn't disqualify her.I still don't see the point of Will's namecalling. It's not informative, it's not new, it's not relevant, and it's therefore not useful commentary. This blog is of above-average intelligence and occasionally produces a real gem – but this just isn't one of them. I would actually be interested in his reasoned take Sotomayer's record and legal philosophy. Potshots at Rush Limbaugh I can get just about anywhere.

  35. Republicans are opposing the woman — with every bit of rhetoric in their bag — simply because Obama nominated her, that's all.Personally, I'm sorry the President didn't nominate John Yoo. I'd be absolutely enthralled by the spectacle of 40 mostly elderly, mostly white, mostly male people in suits jumping up and down and screaming about John Yoo's sins against human rights and dignity and his abuses of the rule of law.

  36. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.Hey, some of those people have built highly successful media and/or political careers on being morally odious morons. Why change now?

  37. I think a lot of folks are missing the point of Will's post. Yes, he wrote about the merits of the nomination, in a way that is fairly obvious and hard to contest (to wit, Will noted that he understands a non-libertarian President isn't likely to nomnate a libertarian jurist to the Supreme Court). But, more to the point, I took Will to be commenting on the kind of crass and predictable spectacle that the nomination has cause, with Republican opinion leaders behaving as boorishly and viscerally as Democrats did when Justice Alito was nominated. I too hate this kind of grubby, circus electoral politics. We'd be far better if we wen't back to the old days when there were no such things as judicial confirmation hearings. None of this is to say that Sotomayor is a great pick (her tenure as a judge seems competent, but certainly not spectacular), or that some of her decisions and speeches are not subject to legitimate criticism. But shouting racist, klansman, etc., from the hilltops does indeed perpetuate the idea that the Republican Party is controlled by morally odious morons. The vitriolic response of some on this post simply provides further evidence of the point. One is reminded of how some Muslims attempted to show how peaceful their religion was by responding to the Danish Mohammed cartoons with almost perfectly self-refuting behavior.

  38. Readers of your posts are quite aware of your irony. If heavy-handedness has one redeeming quality, it's that it facilitates comprehension.Perhaps you should consider the possibility that people “get” your comments, and it's just that they don't find them particularly interesting.

  39. Will hates politics? This has nothing to do with politics: Republicans who actually -you know- hold elected office are doing all they can to dial back the crazy.No, this is about fundraising and self-promotion. Gingrich, Limbaugh, Buchanan – none of these characters will be running for office any time soon.

  40. Most of my posts are not ironic. This one was. It was playing off of Sotomayor's comments: “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.”Turn that around and have a white person say something similar and people like Murali and the MSM would crap themselves. Her response proved my point.

  41. The “right” answer being always and only what agrees with your personal opinions and furthers your personal interests. There is, of course, a word for a system in which only one opinion is “right” and only limited interests are served — tyranny.Freedom, on the other hand, means that no one ever gets everything they want. Not a happy thought to most egoists, of course.

  42. First thing, I'm a guy. Murali is a guy's name.Second thing, I got your reference. I just didnt think that the issue was really worth the noise you were making over it. Did she some crappy stuff? sure! If you want a serious criticism of sotomayer look at Radley Balko's analysis of decisions she has made. Those should be worrying for americans.Ive really no vested interests in what justices americans select for Superme Court. I dont live there, its not my country etc.That said, uknowbetter should lighten up. Its not the end of the world if one liberal senator replaces another liberal senator. Is that going to change the voting patterns of the supreme court seriously from what we've been getting these past years? No Libertarians didnt get the justice they wanted. Sure. But thats because they didnt get a libertarian president. Its all par for the course. Its particularly exhausting following american politics. Too much noise over so little.

  43. The only cases that seem to be attracting lot of attention are Ricci, and Maloney. Maloney first, as I think it is easier. IMHO, the Second Amendment should be regarded as incorporated into the Fourteenth and applied against the states, following a Hugo Black-esque approach to incorporation. The logical way to do that would be to take the reasonable regulation approach in Heller and just follow that in state fact patterns. BUT to say that saying that it is settled law that the Second Amendment only applies to the federal government does not evince hostility to gun rights; it is a totally in bounds reasonable way to go. Now I do think that after Heller, there is a much stronger argument for incorporation, since most of what's incorporated are individual rights. But incorporation is a notoriously contested and murky area, and I don't think there has ever been any consensus about the right methodology for it. Hostility to Soto here is pure political preference, and though I share that preference, I don't see what there is to get all agitated about.Ricci is even less of a no-brainer. I have NO idea what one should do here on the Equal Protection claim. It seems to me that where this is going is that it may turn into a day of reckoning for disparate impact analysis under Title VII altogether. Absent the EP claim, it seems to me that the city engaged in perfectly legitimate avoidance of a disparate impact Title VII claim against them, in good faith, and that there's nothing special here from a statutory standpoint. But the EP claim may very well be a legitimate one. It seems that there is this broader history of conservative jurisprudence using equal protection to undo remedial efforts to combat racial discrimination, in the name of colorblindness, and so it is easy enough to see what justices informed entirely by political preferences would do here, and in terms of my own political preferences, I have long thought that the time has past where aggressive remedial efforts were needed (and disparate impact analyses under Title VII seem to me one of the more aggressive tools). But that's policy. What the better EP analysis should be, policy aside, is something I confess to being utterly mystified by now. I guess the question would be, do Title VII disparate impact suits meet or fail to meet strict scrutiny. I can see an argument for disparate impact being *necessary* to remedy part discrimination, and remedying discrimination being a compelling state interest (I don't think “diversity” is a compelling state interest). I don't know. These issues seem hard to me as *legal* matters, even if they seem pretty easy to me as matters of political preference. Which leads me back to the political debate: someone who says that these issues are *easy* is just pushing their preferences, with a hefty dollop of inappropriate sanctimony and indignation. So Will is right, though for the reasons I've given.

  44. You say you are in favor libertarian activism. I suppose that is because you like the results. Let me ask you, as a starting question, do you believe the written content of the Constitution should affect the judges' decisions? In other words, does it matter whether that activism is authorized by the Constitution? If it does, what limits does that place on such activism?

  45. Will;”God I hate politics”So what is your preferred method of implementing policy?And thanks for trying to nip the name calling in the bud.

  46. Finally someone discussing the merits of Sotomayer's decisions here rather than just calling namecallers names back.As to the first issue – I find your discussion completely convincing, but I'm not sure why this then doesn't go in the “con” column in deciding on her confirmation? We're looking to confirm someone who shares our interpretation of the law as far as possible. If this is an ambiguous case where it's not entirely clear what the right interpretation is, but what IS clear is that she doesn't share ours, then isn't that a reason to oppose confirmation? (All other things equal, of course – I get that you have to vote on the whole package, that there's no line-item confirmation, as it were…)As to the Ricci case – I'm right with you. It's pretty clear to me too that the town was just trying to avoid litigation – who can blame them? There's really no complaint against Sotomayer here – especially since it seems she's pretty consistent in denying pretty much all racial claims suits, regardless of the race of the plaintiff. I have no idea what to think about Ricci – though I admit to a sneaking hope that the Supreme Court will use it to give us a rule that says that all that is required is that the testing authority make a good-faith effort to keep tests race-neutral, freeing us from a lot of ex post performance metric nonsense. That Sotomayer passed the buck on this one is fair enough – but I dont' think that makes it wrong of me to say that I would've preferred it if she'd gone ahead and set that precedent.Nothing about your thoughtful commentary here, of course, changes the fact that Will's post is pretty useless. Calling namecallers names is just more namecalling when commentary is what's actually required.

  47. Hey Josh. Thanks for the appreciative nod. I actually haven't said a word about whether I approve her nomination or not (I do, but for reasons not yet broached by anyone). My only point is that she's a pretty mainstream non-activist liberal judge who gave a speech about being proud to be a Latina, which also doesn't make me lose sleep, except about the people who do. I have ideas about what the perfect justice would look like, but such nominees haven't been placed before me, and it would be quite complex to explain what they would be like (if someone wants to nominate Akhil Amar, that works for me, though it seems pretty unlikely–I want someone who is sensitive to classical liberal principle AND history). But my hazy impression of the past few decades is that absent such nominees a libertarian agenda is best served by an evenly divided court, with one or two with some libertarian impulses as swing votes. We've had that to my satisfaction for some time now, so my biggest fear has been upsetting the balance. Since Stevens was the oldest, most likely to retire or die, that means a Dem nominee. That, among other reasons, was why I voted for Obama (you could call me an “Andrew Sullivan Republican” and I don't vote LP above the state level). When the conservatives on the court start aging out, all else being equal, I'll be willing to reconsider voting for a Republican for President again. For now, I'm more worried about a shift in majority overturning Roe, Lawrence, Boumedienne, etc.

  48. Will and I agree, because we both believe that you can have democratic politics AND sane civility with a minimum of hysteria, hypocrisy and vindictiveness. Well, once upon a time you could.

  49. I'm not all that incensed about her. Not any more than your typical brain-dead liberal.But what I am incensed about is the crazy double standards that the MSM applies. She would be roasted if she was white and said the same thing.

  50. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.Because they (Gingrich, Limbaugh, Hannity, Goldfarb, Tancredo, Liddy, etc) think that this sort of barely-disguised racism will benefit them personally by appealing to their intended audience. (And if that crowd aren't vermin, they've spent years perfecting the imitation.)

  51. Liz – New York – University of Rochester grad with a BA in history. Attending law school at Syracuse University. Politics, fitness, Calvin and Hobbes, dudes.
    Liz says:

    “But, more to the point, I took Will to be commenting on the kind of crass and predictable spectacle that the nomination has cause, with Republican opinion leaders behaving as boorishly and viscerally as Democrats did when Justice Alito was nominated. I too hate this kind of grubby, circus electoral politics.”This is essentially what I grabbed from the post as well. It's not that criticism of Sotomayor is unwarranted, but the Republican response is so formulaic that I feel like I could preempt their comments much in the same way I can recite lines from Clueless before each scene.The difference being that I thoroughly enjoy watching Clueless, of course.

  52. How you tell when politician lie?Comrade Pelosi blinkSlick Willy rub noseComrade Oboma open mouthDumb Donkey Gibbs laugh…Hehaw..he..haw..he..haw!I Igor produce Barrack Milhaus Hussein Obama Birth Certificate at

  53. Liz – New York – University of Rochester grad with a BA in history. Attending law school at Syracuse University. Politics, fitness, Calvin and Hobbes, dudes.
    Liz says:

    No, their formula includes using that quote in very predictable ways.

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