Ian Millhiser writes:

One of the centerpieces of federal civil rights law is the ban on disparate impact discrimination. In 1964, Congress passed a law forbidding race discrimination in hiring, but it soon became very clear that racist employers rarely leave a paper trial proving that a job applicant was turned down because of their race. The ban on disparate impact discrimination was a response to this reality, intended to “smoke[] out hidden bigotry” by forcing employers to justify practices that have an adverse impact on minorities. . . . In 1989, the Supreme Court in Wards Cove Packing v. Antonio significantly weakened the ban on disparate impact discrimination. Congress responded almost immediately by overturning Wards Cove with the Civil Rights Act of 1991. Right-wing justices tried their best to roll back civil rights law, but they were rebuffed by elected representatives.

Since Wards Cove, Congress has gotten much more progressive, but the Supreme Court has lurched to the right. In other words, the time is ripe for another conflict between Congress and the Court regarding whether civil rights law can continue to smoke out clandestine bigotry in hiring. . . .

(Emphasis supplied) And the brazen, judicially activist, extreme conservative wing of the Roberts Court are just the white men to do it - to overturn the wishes of the People as expressed through the elected branches of government - the Legislative and Executive Branch. The White Man's Burden must be lifted . . .

Speaking for me only

In yet another 5-4 split opinion, the Supreme Court today ruled a judge must recuse himself from a case "when large campaign contributions from interested parties create the appearance of bias."

"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause," Justice Anthony Kennedy said for the court.

...."Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," Kennedy said.

The opinion is here (pdf). The dissenters: Roberts, Alito, Scalia and Thomas. What a difference one judge can make.

Because I am not on the White House talking points list, I have to read Greg Sargent to find out what the White House is pushing out there on the Sotomayor nomination:

I’ve obtained a set of White House talking points, privately distributed to outside liberal allies, that chart an aggressive counterattack against foes of Sonia Sotomayor, claiming that critics of a major ruling “wish to reignite the culture wars of the past” and are “grasping for attacks in the face of a strong nominee.” The new talking points — which hit back more aggressively than earlier ones — show the White House anticipates a fresh onslaught of attacks on her widely-cited ruling in Ricci vs. DeStefano when the Supreme Court rules on this case, perhaps this week. The talking points suggest the White House thinks the debate will shift to this case and that the attacks have some potential.

(Emphasis supplied.) I think Ricci provides potential -- for properly labelling the Roberts Court as a brazen extreme conservative judicially activist Court with no deference for the Legislative Branch. More . . .

Speaking of identity politics, this endorsement of gender diversity on the Supreme Court comes from a well-known Republican:

Former first lady Laura Bush says she's pleased that President Barack Obama nominated a woman for the Supreme Court. ... Mrs. Bush said in an interview broadcast Monday on ABC's "Good Morning America" that "as a woman, I'm proud that there might be another woman on the court. I wish her well."

Even better news from the same article: George W. Bush, unlike Dick Cheney, plans to keep his mouth shut about President Obama's governance. If only the rest of the GOP would follow his lead ....

The conservative faithful cling to the belief that racism doesn't exist in our society -- or, if it does, it is racism directed against beleaguered whites. Some conservatives, fearing the repercussions of a full-frontal assault upon Sonia Sotomayor, have shied away from bellicose charges that Judge Sotomayor is a racist, although RNC Chairman Michael Steele recently fanned those flames by saying: "God help you if you’re a white male coming before her bench." (Steele's evidence that white males have not fared well before Judge Sotomayor during her 17 years on the bench is nonexistent, but ignorance of the facts has never stopped Steele or his conservative cohorts from expressing an opinion.)

The right wing Judicial Confirmation Network raised the divisive issue of racism less directly by griping about a memo Sotomayor and two other board members of the Puerto Rican Legal Defense and Education Fund signed in 1981 that said "capital punishment is associated with evident racism in our society." These are fighting words to the conservative mind, which not only denies the reality of racism but believes capital punishment is fair, just and necessary (except, perhaps, for the likes of Scott Roeder, who will not face the death penalty for his alleged murder of Dr. George Tiller). The Network's counsel relied upon the 1981 memo when she warned the Senate Judiciary Committee that Sotomayor is "a hard-left liberal judicial activist."

[more ...]

I must say this seems a surprising development to me:

I [Orin Kerr] have accepted a position as Special Counsel for Supreme Court Nominations for Senator John Cornyn for the duration of the Sotomayor nomination.

Kerr's blogging on Sotomayor has been, how can I put this - sane, reasonable and intelligent. And generally speaking, Prof. Kerr is one the brightest and most reasonable minds on the Right. Something does not add up here.

Speaking for me only

UPDATE - See also Daphne Eviatar, Scott Lemieux, and Lean Left.

I wonder if this obvious fact will now break through to the Media. I have written over and over that Chief Justice Roberts has proven to be the most brazen judicial activist the Court has seen in some time. Now conservative legal commentator Stuart Taylor is saying the same thing:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.

No kidding. Now will the Media feel it is acceptable to report this obvious fact? That Roberts and his cohorts are NOT "moderate" and "modest?" That instead they are brazen, extreme conservative judicial activists? More . .

Must be a racial pride thing . . . Via CQ:

According to Maine Republican Susan Collins, Sonia Sotomayor's favorite Supreme Court justice is Benjamin Cardozo.

Kidding aside, Cardozo was the greatest American common law judge of his time and probably of the 20th Century (I still give John Marshall the all time award.) Good choice Judge Sotomayor.

Speaking for me only

As Republicans struggle to invent a reason -- any reason -- to oppose the confirmation of Judge Sotomayor, they've seized a snippet of a speech she once gave to claim the judge "will let her personal background and experiences influence her opinions from the bench." This attack makes sense only if you believe that all the Republican-appointed judges since the Reagan administration were selected without considering whether their backgrounds and experiences tended to make their judicial philosophies pro-business and pro-Republican. Do you?

Instead of confronting the Republican hypocrisy (and how often do Democrats in the Senate bother with that?), Senator Leahy is playing the game by asserting that Judge Sotomayor will "follow the law" without regard to her upbringing (or, presumably, her gender or national origin). Of course, if "the law" is clear and easily followed, the Supreme Court isn't likely to weigh in on the law's meaning. It is when a statute is ambiguous or precedent provides no clear answer that Supreme Court Justices are called upon to clarify the law. All nine Justices believe they are "following the law" when they vote in 5-4 decisions, but the dissenters follow it to a different conclusion than the Justices who comprise the majority. [more ...]

Via Matt Yglesias, Ramesh Ponnuru argues for a brand of "neutral" judicial decisionmaking:

[C]ouldn't a third judge "perceive" that the Constitution, properly interpreted, doesn't actually empower him to balance, or say anything at all about, the schools' concerns about security and the girl's psychic needs? And wouldn't Brooks's observations about judicial psychology apply a lot less to a justice with that mental "model"? . . . Conservatives have not been denying that they are prone to these influences ["empathy"]. They have been denying that these influences should be given free rein.

An honest conservative would observe that this ideal justice Ponnoru describes will decide against the white firefighter in Ricci. The reason is simple - the law, as formulated by the Congress of the United States, objectively dictates that Ricci's action against New Haven should be dismissed. Why? Because New Haven's actions are consistent with the dictates of Title VII of the Civil Rights Act of 1964. There is no real argument, other than one steeped in empathy for Ricci, that could dictate a decision in favor of Ricci. More . .

In an otherwise very good editorial, The New York Times makes one assertion I completely disagree with:

Supreme Court nominees should not go into specifics about cases they might judge.

I have always disagreed with this formulation and I still do. Why shouldn't judicial nominees indicate their views on the issues they are likely to face? What could be more important to know about judicial nominees? I do not understand this convention of evaluating judicial nominees and I never have. It is wrong.

Speaking for me only

David Kirkpatrick of the NYTimes writes one of the more remarkable (in a bad way) articles yet on Judge Sonia Sotomayor. Kirkpatrick writes:

The selection of Judge Sonia Sotomayor for the Supreme Court has opened a new battle in the fight over affirmative action and other race-conscious remedies for patterns of inequality, with each side invoking the election of the first black president in support of its cause.

Really? Why would that be? Actually what the Sotomayor nomination truly highlights is the wholesale adoption of judicial activism by extreme conservatives to roll back through judicial means race conscious remedies enacted by the elected representatives of the people. The champion of this judicial activism is none other than Chief Justice John Roberts. More . . .