Wednesday, May 06, 2009

I remember well when William Brennan retired from the Supreme Court in the summer of 1990, eventually to be replaced by a New Hampshirite named David Souter about whom very little was known. As a sensitive and desperately undersexed 17 year-old, I wrote a long non-rhyming poem that, among other things, lamented Brennan's retirement; a year later, Fugazi put out a song that carried the same message, but rocked a lot harder.

Souter, however, turned out to be a pretty fair justice--an enormous disappointment to the militant Republicans who championed his nomination, and an unlikely hero to the liberals who initially viewed his appointment with dismay. When he announced his plans to retire last week, the right took one last opportunity to boo and hiss a man they regarded as a betrayer before starting the pre-emptive demonization of whoever will replace him. I thought this recent article made an important point, though: Souter could credibly argue to be a "judicial conservative," in that he showed a consistent deference to legal precedent and a sympathy to the notion that overturning established legal norms would create chaos within American jurisprudence as well as in the affected domains of policy.

Perhaps not surprisingly, this is the kind of conservatism I can get behind: a reluctance to change too much too fast, or to impose an unambiguous, ideologically driven preference upon a public far more divided in its views. In the realm of policy, this likely constrains liberals more than conservatives: it furnishes the most compelling argument against blowing up the current patchwork of health coverage in favor of a single-payer system, for instance. In matters of law, however, this is exactly the sensibility that the likes of John Roberts and Sam Alito seem most determined to sweep aside--hence their decisions gutting school desegregation and aggressively reinterpreting the Second Amendment, among other matters previously thought to be settled. There are few more bitter ironies in public life today than self-described conservatives bemoaning "judicial activists," when the judges most determined to discard precedents and impose their own views from the bench are all now found on the far right.

I think one would have to go back to Lyndon Johnson's presidency to find the last "activist liberal" appointed to the Court. One question now facing President Obama is whether he will seek to replace Souter with a Roberts or Alito of the left, or a Souter-type champion of judicial restraint. Another way to frame this choice is whether Obama's ideal justice would more regularly do battle with conservative ideologue Antonin Scalia, or seek to bring the consistently inconsistent Anthony Kennedy over to the liberal side.

Among the rumored candidates for the nomination is Judge Sonia Sotomayor, who would be the first Hispanic justice and third woman ever appointed. Sotomayor first got public attention--and won a permanent spot in my heart--in March 1995, when she issued the injunction that ended the baseball strike. The evolving debate over her possible nomination offers an interesting window into the state of our national discourse: coincidentally or not, the right's emerging critique of Judge Sotomayor--that she's possessed of a second-rate intellect and an obnoxious temperament--aligns almost perfectly with the stereotypical denigration of Puerto Ricans from the Bronx; she happens to be a Puerto Rican from the Bronx. Glenn Greenwald offered a devastating takedown of this smear against Sotomayor earlier this week that's well worth a read.

I've always found the Supreme Court pretty compelling anyway (did I mention I wrote a poem about William Brennan's resignation when I was 17?...), but Sotomayor's prospects for elevation especially so because I know her--very slightly--socially.

The judge presided at the 2005 wedding of one of Annie's friends, a lawyer who had met her professionally and struck up a friendship, at a private residence in Connecticut. At the reception afterwards we talked about baseball a bit; she's a huge Yankees fan, as you might expect from a Bronx native. She's not, however, very fond of Alex Rodriguez, whom she claimed couldn't hit in the clutch. (I disagreed then, both on the grounds that clutch hitting doesn't exist and that the guy had delivered in enough big spots to discredit the argument; four years later, I'm not as sure about either point.) She was also at a party in Brooklyn thrown by the same friends a few months later, and wound up giving Annie and me a ride into Manhattan at the end of it--during which she solemnly pronounced that she could tell we were "a good couple."

Obviously this doesn't have much to do with whether she would be an effective Supreme Court justice. But I'll admit it has me rooting for her appointment.


the Navigator said...

This makes me like Sotomayor a lot more.

And there's an op-ed out today making the very excellent point that it would be beneficial to have a Supreme with federal district court experience - which Sotomayor has, and none of the sitting Supremes do.

I still think I'm opposed because she's too old. I'm really serious about this: Thomas still isn't that old, and Alito and Roberts will be haunting us for decades. I want a progressive who's no older than 50. I don't want a centrist and I don't want someone who might get replaced by Pres. Jindal** in 2023 (not that Sotomayor is all that old, but still: there's a reason that the GOP picks young justices; it's not coincidence.)

As for judicial style: William Brennan spent 34 years trying to bring the William Kennedys of his day over to his side. More of that, please. I don't want, or need, a Keith Olbermann on the bench - I want someone who will achieve better pratical results for us.

the Navigator said...

** for anyone who might be thinking that Jindal's disastrous introduction to the national political audience has permanently damaged his future chances, let me refer you to the 1988 Democratic national convention. Young governor of a Southern state. Giving prominent speech. Went on embarrassingly too long. Got biggest applause at "In conclusion...". Things worked out OK for him.

David said...

I guess there's some tradeoff between "attainment" and "youth." Sonia is just 55; increasingly (and sadly...), this doesn't seem all that old to me.

On the other hand, she has some health problems--diabetes for one thing, since childhood. I don't know if that shortens life span, but if it's the difference between her having a reasonable expectation of living into her 80s, and not, that's a valid (if a bit grisly) consideration.

As for Jindal, of course he's still potentially viable... but I think it's going to be tough for him to run unless he succeeds in his governorship, and increasingly I believe there's a contradiction between "governing effectively" and "placating the right wing base." In other words, for him to do the things he'd have to do to win re-election and gain attention, he would have to run the risk of disillusioning Rush Limbaugh and Grover Norquist. So unless those guys lose some sway, which doesn't seem likely, their ideology fetish would stand a good chance to sideline any Republican who could make a "competence" argument.

The Navigator said...

OMG I wrote "William Kennedy". You were kind not to call me out - I'm supposed to know these things. Maybe I was conflating Brennan and Kennedy. In any event, the court's swing vote is, of course, Anthony Kennedy.

David said...

I just cruised right past that... as I said, I'm getting seriously old.