Ned Ryun, son of former Olympic miler and stumbleprone former Congressman Jim Ryun, is worried about Sonia Sotomayor, President Obama’s nominee to replace David Souter on the Supreme Court.

How worried? “I have a sneaking suspicion,” he writes, “that she has a different view of the Constitution than our Founders did.”

I kinda hope so, truth be told. Our Founders thought that the Constitution should allow slavery, should not grant equal rights to women, should not apply equally without regard to race, thought that the Senate should not be directly elected by the states’ voters, and generally believed that the Constitution existed to protect the wealthy and powerful against the masses. I think we all disagree on those points (or most of them, I hope). In fact, so many people did disagree that they passed amendments reversing those policies.

Other changes happened with less fanfare. Until the famous case of Marbury v. Madison, it wasn’t clear what would happen when the Executive and Legislative Branches of the federal government disagreed. In that decision, Chief Justice Marshall formalized the notion of judicial review, giving the Supreme Court power to invalidate unconstitutional laws. That power is nowhere mentioned in the Constitution. Marshall didn’t craft it from whole cloth, but he certainly made policy there, and forever gave appellate courts a role in crafting policy. When Judge Sotomayor says that “the court of appeals is where policy is made,” she’s hardly stepping beyond the role set out for the courts by the nation’s founders. Judges don’t make policy from whole cloth, but the details of how they interpret ambiguities or conflicts in the law unquestionably counts as “making policy,” and judges have done that since the nation was founded.

Nor is Ryun being terribly consistent in all this whinging about judges who aren’t sufficiently “moderate,” or about the Court’s role in policymaking. Not long ago, he was raging against Supreme Court nominee Harriet Miers. He decried the nomination, not based on any assessment of Miers’ judicial philosophy or her view on the constitution, nor (oddly) on her manifest lack of qualifications for the job. No, he imagined her in explicitly partisan, political, policymaking terms. “[I]n an intellectual ‘cage fight’” over a constitutional issue with the Court’s liberals, Ryun says, “Miers would end up in shreds on the floor. Oh, she might give us a good vote,” but she wouldn’t be in a position to sway people. If the matter were simply to ask “What would the Founders do?,” that would hardly require such intellectual pugilism. And if the policy outcome didn’t matter, what would it mean to talk about “a good vote”? No, this is the language of a policy struggle.

If policy didn’t matter, why the insistence that “the White House and Bush surrogates need to provide proof of her judicial conservatism”? Regardless of Ryun’s later worry about judges making policy, he worried about Miers because, as far as he could tell, she “doesn’t have any opinions on the great moral issues of the day.” But her opinions on such issues would only matter if judges acted with personal discretion to enact their own policy preferences.

Furthermore, he thought that this “tabula rasa 60 year-old” was the wrong choice. Sure, she’s evangelical, he argued, but where was the conservative fire. Throughout that essay, “conservative” is used a dozen times, but no mention of the Founders, nor of any recognizable judicial philosophy other than opposition to abortion. And that’s not a judicial philosophy, it’s a policy position. And before he starts whining about Obama’s call for judges with “empathy” and insisting that judges should not think of themselves as enacting policy, he should ponder his earlier insistence that “There are great questions to be decided by this Supreme Court that will determine the moral fabric of this nation.” Those questions are policy questions by any reasonable definition.

Ryun’s preference was for Miers to withdraw her nomination, and for Bush to nominate conservative firebrand Janice Rogers Brown. “Speaking hypothetically,” Ryun pondered, “if Brown became the new nominee, there is little doubt the Democrats would filibuster. They would be forced too, but imagine the PR nightmare of filibustering an African-American woman.” Arguable, but possible. Now, however, it is “obscenely racialist” to suggest that a Latina’s life experience may lead her to a deeper understanding of the challenges of racism and sexism in America than a white man’s might. Sotomayor’s “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life, as conservatives like Rod Dreher acknowledge, is not unreasonable. In context, that statement isn’t about playing any race card, just pointing out “how the context in which we were raised affects how judges see the world, and that it’s unrealistic to pretend otherwise.” The full speech really is worth looking at, not least because of Sotomayor’s nuanced and thoughtful examination not only of how people in majority groups have to work hard to see past their own experience and reach a more neutral vantage, but how she has done the same. Would that her critics could do the same.

Ryun’s comment about Judge Brown is purely racial. Her skin is dark, so it’d be hard to filibuster her, and that’s the reason to nominate her, in his hypothetical. Sotomayor hopes that a Latina would, based on her greater experience of all sides of society, be able to render more nuanced judgments than the average white man. Not because of anything intrinsic to her gender or ethnicity, not because of skin color or ancestry. Because of experience and hard-won wisdom. For Ryun to call that “racialism” rises well beyond the pot calling the kettle black.

However, Ryun did offer some guidance that seems utterly reasonable. Rejecting calls to find a moderate “stealth candidate” to get past political opposition, Ryun asked:

is it me or do Republicans have a ten seat majority in the Senate? Make the Senators toe the line and send in a good conservative nominee. Furthermore, since when has any self-respecting conservative ever ducked a principled fight? Right now I can’t think of a greater fight than the Supreme Court.

I can think of few bigger fights than the Supreme Court, and Democrats currently enjoy a 19 seat lead (20 as soon as Franken is seated) in the Senate. Elections have consequences, and I expect that Ryun will just have to live with this one.

Comments

  1. #1 Zoom
    May 27, 2009

    Can I have a problem her and not be considered a wingnut? Is any dissent welcomed these days, even on blogs supposedly dedicated to science?

    My problem with this nominee is not the empathy part, but the idea that empathy should trump reason. I have not determined that this is the case with her yet as the initial political piffle is still in play. I hold no rigid ideologies, but I have always found identity politics to be too divisive and counterproductive in the long run. She can be an ethnic representative all she likes as long as she is a judge first and foremost.

    There’s also the idea that someone who had a tough upbringing (or whatever the “experiences” are supposed to be) is somehow going to be wise. What is this “hard won wisdom” exactly?

    And the statement *did* play the race card. If it means what you say (and I *do* actually agree with you), there was no need to use “white male” at all. Is there an assumption that a white male will have a specific life experience invariant from other white males? There’s no white men who were raised in poverty? They are all born, as the Bugs Bunny toon says, owning a mansion and yacht? Yes, I’m being facetious, but you get my drift. There is no coherent “white male” experience in this or any country. It was, shall we say, an unwise choice of words. ;-)

    All that being said, at the moment, I’d probably confirm her had I a vote.

  2. #2 pben
    May 28, 2009

    I think all this crap about empathy is just following the script from Regan, Bush, Clinton, and Bush on how to get your judge on the bench. The script is to find a young (under 55) person with a good life story and a skimpy record and run them through the process. Since the two parties really don’t have that much that they really disagree on the fighting is so vicious and not worth the hassle. The Republicans know that if they put up a big enough stink they can make sure that only change they like will occur and the record shows so far that Obama will cave. It is so sad to have a county with one and a half parties. I used to be a Democrat until the Bush years showed me that the Dems will always cave even when they have opinion polls on their side. Maybe I have just lived in Kansas too long.

  3. #3 a lurker
    May 28, 2009

    “That power is nowhere mentioned in the Constitution.”

    I don’t think it had to, it should have been fairly obvious. Courts are where disputes over interpretations of law are settled (among other things). The Constitution is law, a law higher than statutory law, but law nevertheless. That alone should settle the issue, but wait there is more.

    Such judicial review was explicitly mentioned in the Federalist Papers so that this development should not have surprised no one who watched the debates on whether or not the Constitution should be ratified. The notion that the executive and the legislature was subject to the courts interpretation of the law was well established in the English common law system that the new country inherited (and indeed was using and still does though now with two centuries of independent evolution).

    Yes some of the founding fathers did not like the idea. But none of their alternatives made all that much sense and had pretty much no legal justification. And of course if the court’s taking of what should have been its power in the first place was unacceptable, there was a clear remedy: constitutional amendment.

  4. #4 Josh Rosenau
    May 29, 2009

    Of course one can have a problem with her without wingnuttery. But claiming that she puts empathy above reason isn’t exactly the path to follow if that’s the goal. Look at her rulings (all of them) and see if you can find any that are unreasoned.

  5. #5 rumpelstiltsken
    May 29, 2009

    The law is something like math. We abstract general principles, and then we deduce conclusions from them. Unlike math, the axioms can be a bit squishy.
    Our law has a Judeo-Christian heritage, as much as that bothers some. Thou shalt not kill. That’s a good rule, unless someone is trying to kill you. Thou shalt not steal. Another good rule, but it presupposes some notion of property rights, which is Byzantine at best (as the recent bailouts should convince, or confuse, anyone).
    The point being, when we make law, we are not interested in justice. We are interested in the abstraction of principles. But when we apply law, we should be interested in justice. That’s why I’m not too worried when someone might say, “gee, a person with a disadvantaged background might come to a more just conclusion than a rich white guy”; that statement is probably true.
    People worry about activist courts. That makes sense, since our common law system gives weight to precedence. But the fact is, our Supreme Court has nine people on it. And no matter how “sweeping” the decisions are, I think they do tend to reflect, rather than define, changes in our national attitude, .

  6. #6 Comrade PhysioProf
    May 30, 2009

    Excellent post, dude!

  7. #7 TiredOfTheRunAround
    June 1, 2009

    If I remember Con. Law 1 properly “It is emphatically the province and duty of the judicial department to say what the law is.” Now if Sotomayor is correct that the judiciary is “where policy is made”, then shouldn’t Marshall’s quote read “It is emphatically the province and duty of the judicial department to say what the law should be.” ?

    Mr. Rosenau, I understand your argument as to why you believe Marbury v. Madison was indeed a policy decision, but I agree more with post #3. Post #3 is more rooted in history and reaches its logical conclusion like one trained in the law. Not to say your understanding is unreasonable, rather just less persuasive to one trained in law.

    An interesting exercise would be to analyze the etymology of the word “political” and contrast it with the etymology of the word “policy”. One will find they are quite identical, which should have some bearing on why we call the Congress and the Executive branches the “political branches” yet do not include the judiciary as a political branch. The judiciary, despite what Sotomayor has to say, is not where policy is made.

    I understand in reality that policy plays a role in the judiciary, but such a role was historically to be ancillary rather than primary in judicial decision making.

  8. #8 Josh Rosenau
    June 1, 2009

    Your error, or more generously, your misunderstanding of my point, is in thinking that determining “what the law is” is not “making policy.” I emphatically think it is.

    Heck, she followed the line about “policy” by saying “we don’t make law.” She is distinguishing between making law and making policy. Where the law is ambiguous, and agencies have failed to clarify it, the courts add clarity, and that constitutes “making policy” within the strictures of the laws as passed. Nothing you said contradicts that simple point.

    Even conservative legal scholar Jonathan Adler sees no problem here:

    it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications — and deciding the case will, in many instances, “make policy.” But this is wholly consistent with the idea that a judge’s responsibility is to interpret and apply the law without regard for those policy consequences.

    Indeed, you seem to be going farther than Sotomayor. She was not claiming that achieving some policy goal was some sort of primary role of the judiciary, or even that it is, as you say “policy plays a role in the judiciary.” She’s just saying that judicial decisions impact policy.

    Maybe Marshall could have reached no decision other than what he did. But the way he wrote it also established policy. Writing it when he did, in the case he did, made policy, limiting the powers of one branch of the government, and expanding the power of another. This is not to say he exceeded the Constitution’s limits on his own power or that he rewrote the law. But interpreting the law makes policy.