John Yoo, the former Justice Department official who helped craft the legal rationales for the Bush Administration's "enhanced interrogation" regime, has come out strongly against Sonia Sotomayor -- on the grounds that she could decide cases on the basis of outcomes rather than the law:
Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.
In other breaking news, John Yoo has absolutely no sense of self-awareness.
The subjective question of a nominee's fitness to serve on the Supreme Court is one that perennially gets too much attention, but that should ideally fall to respected and trained legal thinkers, capable of evaluating complicated writings and other signs of merit. So, naturally, cable news channels are leaving it to panels of law professors obscure Democratic and Republican "strategists" to evaluate of Sonia Sotomayor.
Chris Wilson--the Republican strategist--cited the Rosen article directly but it didn't get him very far; a sign perhaps that, at least on MSNBC, they've come to understand the anatomy of the Sotomayor whisper campaign. Or, perhaps, it's a sign that Wilson isn't as savvy a smear artist as are other GOP strategists. He also claimed, for instance, that Sotomayor was originally nominated to federal district court by Daniel Patrick Moynihan, but, of course, that power belongs to the President alone (at that time George H.W. Bush) and not to members of the Senate.
The Family Research Council, one of the biggest Christian Right activist groups in Washington, has released a statement from the group's president Tony Perkins, harshly criticizing Sonia Sotomayor:
"President Obama has chosen a nominee with a compelling personal story over a judicial pick with a solid constitutional judicial philosophy. A compelling personal story is no substitute for allegiance to the Constitution and its sound application to public life.
President Obama promised us a jurist committed to the 'rule of law,' but, instead, he appears to have nominated a legislator to the Supreme Court.
Rush Limbaugh is taking a strong stance against the Sotomayor nomination, declaring that Republicans should "go to the wall" to oppose her:
"I doubt that Sotomayor can be stopped," said Limbaugh. "She should be -- she is a horrible pick. She is the antithesis of a judge."
He also said that Sotomayor is a racist -- or in a more softened term, a "reverse-racist" -- who was in turn appointed by another "reverse-racist":
"And the libs of course say, the minorities cannot be racists, because they don't have the power to implement their racism," Limbaugh expounded. "Well, those days are gone, because reverse-racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse-racist, and now he's appointed one -- you gettin' this, AP? -- Sonia Sotomayor, to the U.S. Supreme Court."
And does so favorably: "Of course, Judge Sotomayor should be confirmed to the Supreme Court," he writes. "She obviously wasn't my first choice, for reasons I reported three weeks ago, having mostly to do with concerns about her temperament reported to me by former clerks and New York prosecutors. But I hope and assume the White House wrestled seriously with those questions of temperament and weighed them against Sotomayor's other obvious strengths."
He says he objects to the way conservatives have used original article both today and in recent week. "Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her," Rosen notes. "This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court--not that she didn't have the potential to be a fine justice."
That piece characterized the possibility of a Sotomayor nomination as a "gamble." More on conservatives citing his article later today.
As a question of legal process, it's now worth asking who will successfully be seated to their aspirational office first: Supreme Court Justice Sonia Sotomayor -- or Sen. Al Franken (D-MN)?
I asked Prof. Larry Jacobs from the University of Minnesota, and he explained to me that it really comes down to what happens next after Franken presumably wins against Norm Coleman's appeal at the Minnesota Supreme Court. Does Franken get his certificate of election immediately -- which would require the signature of Republican Gov. Tim Pawlenty -- or will Coleman be able to successfully delay it further?
"It's gonna pivot on two things," said Jacobs. "What is it the Minnesota Supreme Court does? Is it a decisive margin and do they provide clear instructions -- which I think they will -- and it depends on Pawlenty's presidential aspirations."
Mitt Romney released this statement on the Sotomayor nomination, with strong words of criticism from a likely 2012 Republican candidate for president:
The nomination of Judge Sonia Sotomayor to the Supreme Court is troubling. Her public statements make it clear she has an expansive view of the role of the judiciary. Historically, the Court is where judges interpret the Constitution and apply the law. It should never be the place "where policy is made," as Judge Sotomayor has said. Like any nominee, she deserves a fair and thorough hearing. What the American public deserves is a judge who will put the law above her own personal political philosophy.
The Judicial Confirmation Network--a deeply conservative group which describes itself as "an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States"--is out fast with harsh words for Sonia Sotomayor. "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written."
She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.
She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety. On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas. The Supreme Court is now reviewing that decision.
She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.
Ah yes. The Roberts court: a bastion of liberal activism.
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Sen. Mark Pryor (D-AR), has released this statement on the Sotomayor nomination -- expressing some possible skepticism from the relatively conservative end of the Democratic caucus:
I would expect President Obama, a former constitutional law professor, to select a high-caliber nominee who shares a deep respect for our Constitution and the rule of law. Indeed, Judge Sotomayor has impeccable credentials and an extraordinary American story. It is also critically important that she possess the proper judicial temperament and the ability to be fair and impartial. I believe this criterion is essential; activist judges have no place on the highest court of the land. That's why I plan to carefully review Judge Sonia Sotomayor judicial record and philosophy as the Senate confirmation process advances.
U.S. Supreme Court nominees deserve a high threshold of review. I believe Judge Sotomayor's confirmation hearing should be rigorous, but fair. I am encouraged that her earlier nominations to the bench - by both a Democratic and Republican president -- have received strong, bipartisan support. It is my hope the Senate can carry out its constitutional duty in a similar fashion with good-faith and civility, and not allow rhetoric to cloud the confirmation process.