I could not approach being nearly as eloquent as Georgetown law professor Louis Michael Seidman in an on-line debate over at the Federalist Society.
Believe me, this guy is as liberal as they come. He not only defended SS's statements about being empathetic and being a wise Latina but also the irrelevancy of not being able to find a single case in which partial-birth abortion was medically necessary.
But at least the guy is calling this nomination procedure like he sees it. On July 14 he wrote:
"...I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts?
First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?
Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves."
Today he explained himself even further -- not backing off from what he said:
"...There's no denying that Republicans on the committee put Judge Sotomayor in a difficult moral position... Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake.
To his tremendous credit, President Obama has made an effort in his public statements to shift the official ideology of judging so that it has some contact with reality. Yesterday, Judge Sotomayor explicitly repudiated the President. Here are some of the consequences of this kind of unilateral disarmament:
1. It means that the only people who end up on the Supreme Court are either naïfs or cynics.
2. It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.
3. Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.
The pity is that all of this was probably unnecessary. The Democrats have sixty votes in the Senate. It would have taken some courage for Judge Sotomayor to have told the truth, but not much. She said yesterday that judges should never decide cases out of fear. Yesterday, she testified out of fear. We have a right to expect better of her."
Couldn't have said it better myself. And yet, not only will the 60 Democratic senators shamelessly vote in favor of her nomination, but some Republicans will shamelessly join them.
But as Seidman said above, they probably don't know anything about the law, and to them the official version sounds plausible.
So glad to know that our legislature appoints nominees to the highest court in the land based on a "Sounds good to me!"