Dems Blowing It Again…at Sotomayor’s Confirmation Hearings
by: Rabbi Michael Lerner on July 16th, 2009 | 12 Comments »
Dems spiralling down again. Stairs at the Supreme Court in DC. (Flickr/Seansie)
The Senate Judiciary hearings could provide an opportunity for liberals to present their worldview to the millions of Americans listening in. But once again, they are showing that they have no such worldview except the worldview of not having a worldview! It’s a stark contrast to the Republicans who unashamedly are asking Supreme Court nominee Sonia Sotomayor to swear loyalty to their perspectives on major political issues facing the court.
Yes, I know that the candidate has to pretend to think and act like a white upper-class man to get confirmation to the bench, and to have no political views shaping her judicial perspective.
But Democratic Senators could use their time to ask questions and make statements that explain why a liberal or progressive worldview is precisely what is needed on the Supreme Court.
Here’s the message they ought to be conveying if they had even the slightest backbone:
“We intend to vote for you, Judge Sotomayor. But we hope that you overcome this notion you’ve been putting forward that your task on the Supreme Court is simply to enforce the law. You see, we’ve been around for a while and heard the right-wing ideologues who currently dominate the Court say the same thing about judicial neutrality and opposition to judicial activism to this very Senate Judiciary Committee while they were seeking confirmation, and then go on to become the most activist justices with clear intent to override previous Supreme Court precedents and impose their right-wing agenda. What we need on the court now are people who have some principles that they will fight for.
“If our system wanted judges who had no ideological commitments whatsoever, we would not have put the appointment of judges in the hands of a politically elected President of the United States. George Bush had no problem nominating right-wingers to the Court, and they have done all they could to overturn past precedents in favor of their worldview. The reason we are voting for you is that we hope President Obama picked someone who was not just a passive ratifier of precedent, but a creative thinker who could look at the needs of American society today and help shape laws that fit these new realities.
“In the past, nominee Sotomayor, the Court has done what it could to challenge the racism and sexism that have been a major part of American society. To do that, they’ve had to declare segregation and discrimination against women to be unconstitutional, though our Congress might still be debating those issues today if it hadn’t been for the courage of some liberal Justices in the past forty years. It’s no secret that the Republicans’ crusade against “activist judges” is a code word for opposition to judges who want to extend human rights and civil liberties to everyone. But we liberals want to do just that, and we want you, Sonia Sotomayor, to do that when you get to the Court.
“You’ll be facing an even more difficult challenge when you get to the Court: taking on the class biases that still shape legislation in the Congress and that have been part of past Supreme Court nominations. To take the classic one: the Supreme Court decision a hundred and thirty years ago to call corporations “persons” and interpret the 14th amendment, meant to protect former slaves, as protecting the so-called “rights” of corporations. From that has come a series of decisions that favor America’s rich and powerful at the expense of the American middle class. Ever since then, the Court has bent over backwards to twist the Constitution in ways that serve the interests of the rich and the powerful. For example, when the Congress tried to put some restraints on the way that the rich can buy the legislation they want by spending endlessly to elect candidates to serve their interests, the Court said that “free speech” of corporations or the rich would be impeded by spending limits on campaigns. To tell us that you are going to be bound by these biased decisions of the past, because you “respect the precedents and must abide by them as a judge,” is to ignore the ways that the Court itself continually undermines the desires of the people when those desires conflict with the interests of the powerful. We hope that you will reverse that kind of judicial activism by an activism favoring the poor and America’s working families.
“Frankly, Judge Sotomayor, our only reservation about you is that you might follow the path of so many liberals in not fighting for your political principles. Or even worse, that you don’t have any such political principles anymore, that you’ve become so indoctrinated by the false notion that law is somehow impartial, when in fact law is made by human beings, and in this country the overwhelming majority of people who have made the laws of the past have been white rich men, and now white rich women, who know how to serve the interests of the people who donate the huge amounts of money that it takes to get elected in the U.S. to a Congressional, Senatorial or Presidential spot. If so, you’ll only ensure that the right-wing bias of the Court remains unchallenged. We are hoping that underneath all this neutrality that you present to this committee, that you actually will be a champion for the ten of millions of Americans who have no one on the Court who cares about their well-being, rather than simply passively applying to new situations old laws made by rich white men who care more about corporate power than about the well-being of ordinary Americans. Please remember that we who are voting for you are voting for change, not just for continuity and more of the same. Be as vigorous for a liberal worldview as the conservatives on the court are for their right-wing worldview. It is our hope that that is who you really are, or else President Obama has made a terrible mistake in selecting you, and we will be making a mistake in confirming you!”
Of course, if there were Senators who could speak with this level of honesty, the country would be far better off, and the Democrats would have far greater support. But when they speak in the wimpy tones of people who have no convictions, they make many Americans feel that they can’t trust these Democrats, and that may contribute to a revival of the political Right, something that would be very destructive to the entire world. It’s moments like this that I mourn once again the loss of U.S. Senator Paul Wellstone, one of the few who had the courage of his convictions.
[...] strategic moves are some thing that the only major essay to questions the Democrats’ participation in this hearing has asked from all the Democrats, ie outline an agenda as strongly as the [...]
Rabbi Lerner –
A great post. Of course, that’s what we’re all hoping for — an advocate for our vision, someone whose “rich life experience” will affect the course of Supreme Court rulings. When I read what she has written outside her court rulings, I still have hope that she will come through for us.
The Democrats in the confirmation hearings are caught in a bind. Some of them actually believe that the President (even when it was George W. Bush) should be able to name his own candidate. Russ Feingold belongs to this group. I know because I’m from Wisconsin (he voted for Roberts). And the rest don’t want to look “biased.” The hegemonic culture ties them more strongly to their Republican (male) counterparts in many ways than to a “wise Latina woman,” even if she (hopefully) agrees with them politically. That’s what I was thinking about when I wrote my post “You’ve Come a Long Way, Baby Sotomayor.”
I don’t expect Sotomayor to talk honestly in this context, but there is no excuse for Democratic Senators to have failed to challenge the assumptions of their Republican colleagues. This is the only time in American politics when we get to hear the worldviews of either side of the political spectrum discussed in some depth, and what we see is very little difference between the two sides. It is inexcusable that none of these Senators challenged the notion that empathy is a bad thing or that feelings should be “put aside” by the Justices of the Supreme Court. President Obama explained why he did not vote for the Republican nominee Roberts by saying that he lacked empathy. This is a critical value–and the Dems didn’t defend it. They continue to act as though they had lost the last election–they simply are unable to experience themselves as winners,and act from a cowardly and unprincipled position.
Unfortunately many democrats as are unprincipled and compromised as the unprincipled and compromised republicans.Therefore I am not surprised when they fail to adopt a position or support a cause that helps the common people in this country. The Sotomayor hearings prove to me that the people that hold the power in the USA still think that our sociopolitical outlook should be a reflection of the minds of people that lived in the eighteen century.
I do not think that Damocrats want to take the risk to stand up and speak of their support–when I watched the hearings I was struck by how stuck (to put it nicely) the senate is–that “Latino” comment was mentioned over and over to the point where it was embarrassing. No one want to look beyond where they have been and what they know. Sonia was so very patient–she could not speak in “hypotheticals.”
Regardless of where on the political spectrum an activist Supreme lies, having an agenda to push through decisions promoting a right wing or left wing cause presents a fundamental dilemma to its functionality as protector of the U.S. Constitution. What then is the purpose of the Supreme Court? Is it to promote a parochial, one-sided view or to assess the constitutionality of the cases being considered based upon each judge’s understanding of jurisprudence? Unfortunately, we have at least one activist judge on the court who exploits his authority by promoting a specific political agenda. Were Judge Sotomayor to be confirmed, she would probably help provide a counterweight to this right wing activism currently afflicting this venerable institution. We should keep in mind that regardless of our political sympathies, the Supreme Court is not a legislative body passing laws. Were this the case then the checks and balances as stipulated by the U.S. Constitution would surely be violated as such a court would run contrary to its designed role.
The Supreme Court in fact functions quite differently from the way you suggest. It continually makes decisions to advance the interests of Åmerica’s ruling elites of wealth and power. That’s why, when the Congress takes a stance that challenges those elties, the Supreme Court often intervenes and declares those actions unconstitutional. That’s why I remind you of the decision by the Court, totally without precedent or rationality, to award the presidency to George Bush in 2000 by ordering a cessation of the recounting of votes in Florida, and why it declared unconstitutional the spending limits law passed by Congress that would have made it harder for the wealthy to determine who is going to get elected. Mr. “Critical Skeptic” actually is a naive beiiever in the fantasies that are taught to him by the media and his high school civics course, and seems unaware of the actual ideological biases that shape the court’s decisions. The power of the Rightwing media and ideology is that it is able to convince people that the Court is acting appropriately when it defends the interests of the powerful, but as an extremist or “activist” court in the few historical moments when liberals were able to use the Court to exend civil liberties or human rights as in the decision to legalize abortion or abolish segregated schools. Our so-called “Critical Skeptic” would have been lecturing the Court that in so doing they were violating the the US Constitution and acting beyond its “designed role.” But we don’t hear him demanding that the Court overturn the most basic and despicable and destructive decision it has made in the past 140 years, namely that which declared that a corporation is “a person” and hence has all the protections that the designers of the 14th Amendment had intended to give to freed slaves but not to corporations!
Your point is well taken about the abuses of power when vested interests are able to manipulate governmental institutions to their own exclusive benefit. Activism can manipulate government to do its bidding rendering its component institutions to serve powerful elites (those groups that are mobilized and have brought their resources to bear to impose their definition of order) at the expense of the polity. Your argument therefore provides quite clearly a very sound case for limited government.
Rabbi Lerner, I agree with you that the Democratic Senators blew it. I think they had an opportunity to outline where they diverge from the Rightwing, and didn’t take it. That’s very disappointing to me, but not at all unexpected. Empathy is a term that most people in the US associate with women more than with men. And as those Americans “know,” women are the emotional and, therefore, the more irrational gender. Empathy is just one of their irrational emotions. And I can tell you from many years of teaching Women’s Studies, that any quality associated with women is seen as second-rate. It’s better to be rational than empathetic; it’s better to be logical than emotional; it’s certainly better to be anything rather than irrational. And so by virtue of their gender, the (mostly masculine) Democratic Senators have a lot to overcome in order to embrace empathy. If (hopefully when) they do, they might look feminine, womanly, certainly not rational and logical, as they’re supposed to be. That’s what I was trying to get at in my last response.
Rabbi Lerner,
I think it
s wonderful that a poor woman who grew up in the projects in the Bronx could rise to become a Supreme Court justice. The fact that she was an affirmative action baby notwithstanding and she might have been the brightest light bulb among idiots in her class she still succeeded with the help of others.
Let’s give thanks. Imagine if 42 million blacks could behave the same way and have a family of jurists and doctors and simply law abiding citizens instead of populating the criminal justice system.
Louis Brandeis, the first Jew on the Supreme Court, was questioned about his religion and anti-Semitism was rife among Congress. He and the Jewish legacy of brilliant minds, unlike Thurgood Marshal and Clarence Thomas, have enriched America.
Jews should be proud of who they are and what they have done for America without Affirmative Action.
Bill Levy
Mr. Levy,
I applaud your pride in the accomplishments of Jews and your compliments, however begrudging, to our soon-to-be newest Supreme Court Justice.
Your racism against African-Americans is, however, extremely sad to see on this webpage.
Sincerely,
Rhonda Magee
Great post!
The so-called hearing was an elaborate artifice. I am presently writing my own blog
about it…from the angle of world citizenship, etc.