The Sotomayor nomination isn’t a week old yet, and I’m already bored with reading about it. I don’t see what people are so exercised about, pro or con. Yeah, I don’t like the comment about “wise Latina woman” making better decisions, and I don’t think it’s defensible (or at least I haven’t read any compelling defenses of it). Otherwise, I can’t see why this particular choice merits all the screeching. (Also, conservatives whose favorite justice is Clarence Thomas shouldn’t be heard to complain about Sotomayor’s lack of qualifications. No doubt her ethnicity was, as with Thomas, a but-for cause of her selection, but she has more experience on the bench and a more distinguished academic record than Thomas did).

As Ezra Klein points out “the Sotomayor fight” is a misnomer:

The last nominee to actually be defeated — Harriett Miers was withdrawn, remember, and withdrawn due to conservative unrest — was Robert Bork. And he was a conservative choice facing a Senate with 55 Democrats. Sotomayor is a Democratic president’s nominee who will come before a Democratic Senate. She won’t be “Borked” because, where Bork began 5 votes down, she begins 10 votes up. If Bork had enjoyed 15 more easy votes, he’d be Justice Bork today.

As such, there are certain safe predictions we can make: Barring imperfect vetting on the part of the majority, the final nominee will be pro-choice. Will be sympathetic to labor. Will be sympathetic to the federal role in regulation. Will be, in sum, the sort of Justice you’d expect from a left-of-center president and a left-of-center Senate.

I don’t like any of that stuff. And Richard Epstein provides reason to believe she may be worse than the average Democratic judicial nominee on property rights. That aside, the numbers in the Senate make it clear that, no matter what, we were always going to end up with a Justice who’d make conservatives and libertarians unhappy.

But there are other areas on which the average Democratic nominee is likely to be better than the average Republican, areas like criminal procedure and executive power. In those areas, from a libertarian perspective, maintaining a 5-4 conservative/liberal balance on the Court, is a good thing. I always thought that “getting more judges like Roberts and Alito” was a lousy reason to pull the lever for the Rs in November, particularly if you care about checks on executive power.

In his terrific book Takeover, Charlie Savage suggests that there was method behind the apparent madness of the Miers nomination:

why did Bush nominate Miers? The conventional wisdom was that the fiasco was simply the result of Bush’s feckless enjoyment of the power his office gave him to reward his friends. But in fact, Miers was a sound pick by the Bush-Cheney administration on an issue about which they cared deeply: executive power. Bush needed to pick a female justice for political reasons, but executive branch experience was almost nonexistent in the resumes of the female conservative appeals court judges and state supreme court judges favored by conservative legal activists. Miers, however, could be counted on to embrace Bush’s expansive view of presidential powers.

So too with Chief Justice Roberts. Savage reviewed an enormous trove of documents prepared by Roberts when he worked in the Reagan Justice Department, and found that Roberts was an even more enthusiastic supporter of executive power than one would naturally expect to find in Reagan’s DOJ. Tasked with analyzing the Presidential Records Act, the post-Nixon reform establishing that presidential documents are the people’s property, and allowing public access to such documents, Roberts “made clear that he loathed [the Presidential Records Act], believing it to be an unconstitutional infringement on the presidency’s power to keep information secret.” Savage writes that Roberts also

pressed to expand the president’s ability to govern in secret, pushing to roll back the Federal Advisory Committee Act… [and] warn[ed] against even appearing to endorse the idea of ‘freedom of information,’ lest it be construed as suggesting that the Freedom of Information Act was a good thing. He opposed issuing any presidential documents in connection with the War Powers Resolution that were worded in such a way as to concede that Congress had a role in deciding when military hostilities could begin or end.

There’s no denying that from a libertarian/constitutionalist perspective, McCain’s prospective nominees would have been better on some issues than either Obama’s or Clinton’s. McCain’s judges would likely have been better on campaign finance reform and the thus-far fruitless effort to restore limits on Congress’s power to regulate using the Commerce Clause. Despite Roberts’s vote in the Oregon Right-to-Die case, they would probably be better on federalism, depending on whose ox is getting gored.

There is little question however, that they would have been far worse than Democratic appointees on questions like, can the president carry out a wiretapping program in defiance of federal law, and forever shield the details of that program behind the State Secrets doctrine?

As Robert Schlesinger points out, the latter issue may well end up before the Supreme Court. We don’t know where Sotomayor stands on that issue, but I’m guessing she won’t be as bad on it as another Roberts or Alito.

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Posted on May 28, 2009 in Civil Liberties, Conservatism, Executive Power, Uncategorized | Comments

16 Responses to “Sotomayor”

  1. Posted by: Eric Hanneken - 05/29/2009

    McCain’s judges would likely have been better on campaign finance reform . . . .

    Really? I don’t think John McCain would have picked a judge who would overturn the McCain-Feingold Act.

  2. Posted by: Gene - 05/30/2009

    Well, if that’s what you think, you’re wrong. The Federalist Society bench from which McCain would have been picking has very few people who are sympathetic to restrictions on funding political speech. Check out the National Journal article from last fall on McCain’s likely picks, and tell me which one of them would have been likely to support the law.

  3. Posted by: Eric Hanneken - 05/31/2009

    Is this the National Journal article you’re referring to? Lindsey Graham’s name is on McCain’s list, and he was a Congressman when McCain-Feingold was passed. Did he vote for it?

    Yes. (Scroll down to “Vote 34: H R 2356.” Granted, he apparently voted against it before he voted for it.)

    Paul Clement is also on the list. His linked profile begins,

    A strong conservative, he has won praise as one of the best Supreme Court advocates, including his defense of the McCain-Feingold campaign finance legislation and other federal laws disdained by conservatives.

    Yes, I could be wrong. I based my opinion merely on McCain’s apparent pride in what the National Journal article called his “signature legislative achievement.” But why are you so certain that I am wrong? Neither of us knows John McCain’s thoughts on the subject. You, I, and the author of the National Journal article are speculating.

  4. Posted by: Eric Hanneken - 05/31/2009

    Hm. Let’s try that link to the article again.

  5. Posted by: Gene - 05/31/2009

    Yeah, that was Paul Clement’s *job* at the time, as solicitor general, so his defense of the law means very little. The National Journal article also says “McCain would also have to wrestle with the fact that potential nominees whom conservatives find pleasing would also be good bets to strike down part or all of McCain’s signature legislative achievement: the 2002 McCain-Feingold campaign finance law.”

    I’m not certain you’re wrong. I’m certain that my original statement, “McCain’s judges would likely have been better on campaign finance reform,” was defensible. Lindsey Graham’s your best case, and I find it hard to imagine that he wouldn’t be far better on CFR than Sotomayor:

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