What Makes A Judicial Decision Controversial?

By Big Tent Democrat, Section Media
Posted on Mon May 04, 2009 at 11:46:38 AM EST
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I owe Stuart Taylor. Jr. some post time on the torture issue, and eventually I will get to that. But in the meantime, Scott Lemieux, via Atrios, demonstrates how Mr. Taylor views issues through a conservative prism, despite his claim to being a "moderate" (hey, we all do it, I call myself a "centrist"):

[Quoting Taylor]"...the Republicans could bleed him some politically if he made an exceptionally controversial pick such as Sonia Sotomayor, a federal appeals court judge based in New York." Exceptionally controversial? . . . Whose record is, as far as I can tell, if anything more moderate than other frontrunners like Wood and Kagan?

. . . [S]o the shocking news is that Sotomayor issues a plausible, mainstream liberal vote in an affirmative action case, one plausible enough to get 4 votes at the Supreme Court. But...with a good whack! I doubt it will be as good a wack as the Casey plurality gave then-Judge Alito's claim that states could force women to notify their husbands before seeking an abortion, but funny, I don't recall Taylor talking about what a political disaster that would be for Bush.

Stuart Taylor, Jr. is a conservative. In some ways, an extreme conservative. Nothing wrong with that. I enjoy reading Ed Whelan myself. But it is important that we get truth in labelling on Taylor. Whenever reading him, everyone should remember that. Especially in the Traditional Media.

For the record, my favorite candidates for the SCOTUS are Cabranes and Kagan.

Speaking for me only

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What Makes A Judicial Decision Controversial? | 35 comments (35 topical)

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Taylor says: (5.00 / 5) (#1)
by Capt Howdy on Mon May 04, 2009 at 11:57:07 AM EST

There is a widespread perception on the right and among some moderates who have seen her close up that she is far more liberal than anyone now on the Court.

hey Stu. we won. elections have consequences.

Further (5.00 / 2) (#7)
by cal1942 on Mon May 04, 2009 at 12:35:58 PM EST

she is far more liberal than anyone now on the Court.

What would be wrong with that?

Answer: Nothing. Nothing at all.


: indeed (5.00 / 2) (#10)
by Capt Howdy on Mon May 04, 2009 at 12:40:29 PM EST

I think most people would say thats the whole freakin point.

Depends whom you ask (5.00 / 2) (#2)
by Demi Moaned on Mon May 04, 2009 at 11:57:52 AM EST

The definition of controversial is that people disagree. And given that you can always find people who disagree with even the most reasonable, well-founded assertions, it all boils down to who gets the air time.

The electoral woes of the Republican Party don't seem to have much diminished the ability of the right wing to get its talking points repeated in mass-media news outlets.

BTD, I'm not very familiar with the judicial (5.00 / 3) (#3)
by steviez314 on Mon May 04, 2009 at 12:15:54 PM EST

philosophies of the possible nominees, but it seems to me that rather than looking for the most liberal one, Obama should be searching for any liberal who could most persuade Anthony Kennedy, or the expected Stevens/Ginsberg replacements.

Force of argument and force of will seem more important to me right now than exactly where they fall on the liberal scale.

Precisely why (none / 0) (#4)
by Big Tent Democrat on Mon May 04, 2009 at 12:17:22 PM EST

among other reasons, my personal favorites are Cabranes and Kagan.


Cabranes is an interesting choice (none / 0) (#5)
by andgarden on Mon May 04, 2009 at 12:20:19 PM EST

Too bad that's he's a he.


That sounds (none / 0) (#9)
by cal1942 on Mon May 04, 2009 at 12:38:12 PM EST

an awful lot like too bad she's a she.


Shades of Republicans complaining about (5.00 / 3) (#12)
by andgarden on Mon May 04, 2009 at 12:41:29 PM EST

"reverse discrimination." I think it's beyond dispute that there's a gender imbalance on the Court. Not being blind to gender in circumstances like this is important.


THere is a gender imbalance. (5.00 / 2) (#13)
by oculus on Mon May 04, 2009 at 12:43:26 PM EST

But I still think nominating the best person for the job is most important, assuming I agree with the viewpoints of that person, of course.


I think there's a pool of people (5.00 / 4) (#15)
by andgarden on Mon May 04, 2009 at 12:47:05 PM EST

who could fairly be judged "best" for the position.


At this juncture (5.00 / 2) (#20)
by Militarytracy on Mon May 04, 2009 at 01:16:53 PM EST

the gender imbalance isn't that much of a concern for me either. I want the best justice for this job.


I think (5.00 / 2) (#21)
by Capt Howdy on Mon May 04, 2009 at 01:25:09 PM EST

it really needs to be a woman.


I agree. (none / 0) (#23)
by indy in sc on Mon May 04, 2009 at 01:52:00 PM EST

Obama will get at least one more shot at this in his first term, but who knows what his political capital will be then. This first pick needs to be an intelligent, dedicated liberal; a female to address the gender imbalance on the court; and a person capable of being persuasive behind closed doors to get current and future swing votes on her side.

If the first pick isn't a demographic twofer, the second pick can focus on addressing another demographic imbalance such as adding a person who is Asian, Hispanic and/or openly gay and/or who comes from somewhere other than the northeast. Diversity matters.

Of course, all picks should have the correct substantive qualifications as well.


they say (none / 0) (#24)
by Capt Howdy on Mon May 04, 2009 at 01:53:23 PM EST

he expects 3


If all three were (5.00 / 3) (#26)
by KeysDan on Mon May 04, 2009 at 02:08:44 PM EST

women (assuming the cited substantive qualifications) that would make for a strong court, from my point of view. Moreover, it would give the aside of avoiding Cass Sunstein.


: I would have no problem (none / 0) (#27)
by Capt Howdy on Mon May 04, 2009 at 02:29:28 PM EST

with that

I think (none / 0) (#31)
by TimNCGuy on Mon May 04, 2009 at 06:07:38 PM EST

she should be a gay, female, hispanic who is as young and healthy as possible.


: no problem with that (none / 0) (#32)
by Capt Howdy on Mon May 04, 2009 at 06:10:53 PM EST

either

There is an 8-1 gender imbalance (5.00 / 2) (#28)
by lilybart on Mon May 04, 2009 at 02:38:42 PM EST

and while feminism seeks for equality of opportunity, in the case of the highest court in the land, women need to be better represented.


: As they are now in the (none / 0) (#33)
by oldpro on Mon May 04, 2009 at 06:20:22 PM EST

law schools, if not yet in the profession...

Five Words (none / 0) (#36)
by cal1942 on Tue May 05, 2009 at 01:47:42 AM EST

Sandra Day O'Connor

Clarence Thomas

Eleven words:

The only thing that counts is the Judge's philosophy, ideology, etc.


Not only is he a he, (none / 0) (#19)
by brodie on Mon May 04, 2009 at 01:06:33 PM EST

but he's also 68 yrs old.

Sorry, that's an automatic no-go.

Though I was impressed this a.m. perusing a dissent he wrote last year contra a superficial majority opinion that Sotomayor was a part of on the 2d Cir. And the TNR piece on her cited over at MY, though it does use some anonymous sources to diss her IQ, is still somewhat persuasive and has me a lot less enthusiastic about her today than yesterday.

Like EWarren though, if she had some impressive leadership/persuasive personal skills to compensate for not being a solid legal scholar, I could again work up some enthusiasm. But I'm not sure she has Warren's skills either.


: Plus, do we really want to offend (5.00 / 1) (#22)
by oculus on Mon May 04, 2009 at 01:34:41 PM EST

the MLB owners? (See one of the links in the link re no replacement players (read scabs).

Please address Kagen's (none / 0) (#6)
by oculus on Mon May 04, 2009 at 12:34:05 PM EST

statements to Senate committee re her confirmation as Solicitor General. About the fundraiser in the Phillipines being an enemy combatant. Surprised that doesn't trouble you.


I have in the past (none / 0) (#8)
by Big Tent Democrat on Mon May 04, 2009 at 12:37:31 PM EST

If an attack is being planned and the participants are in the Phillipines, that is a field of battle.

Please recall that battlefield captures are entitled to Geneva Convention protections and all that entails, INCLUDING the ability to challenge the designation as an enemy combatant before a competent tribunal.

Does that satisfy you?


I would support you, if nominated by (none / 0) (#11)
by oculus on Mon May 04, 2009 at 12:41:20 PM EST

Obama for Souter's seat. But I'm worried about Kagen, as I don't recall her adding the part about the Geneva Convention as to the fundraiser in the Philippines.


She was being politic (5.00 / 0) (#14)
by Big Tent Democrat on Mon May 04, 2009 at 12:44:31 PM EST

Too politic for me. (none / 0) (#16)
by oculus on Mon May 04, 2009 at 12:47:38 PM EST

: It's a dirty business (5.00 / 1) (#17)
by Big Tent Democrat on Mon May 04, 2009 at 12:49:51 PM EST

I think something people forget is that (5.00 / 1) (#18)
by Anne on Mon May 04, 2009 at 01:05:26 PM EST

the Court has a dynamic all its own, and that dynamic changes as new members take the bench - but not necessarily in the way we think it will.

Putting a strongly liberal jurist on the Court is more likely to pull a liberal-to-moderate jurist toward the center. It might also cause a moderate conservative to move more to the right, and will certainly harden the srongly conservative.

It's all about balance and counter-balance, ebb and flow - and in that regard I think it is important to nominate someone who can preserve the existing balance and hold things steady at least until there is an opportunity to replace a justice who has been, up to this point, reliably conservative.

Anything can happen, but I think people often discount the existence of judicial tension, and fail to acknowledge how the dynamic can - as we saw with Souter - result in votes and decisions that do not necessarily follow the path it was presumed a jusice would take when originally nominated.

: Yes. Toobin's book "The Nine" (none / 0) (#29)
by hairspray on Mon May 04, 2009 at 03:28:11 PM EST

was excellent in those respects. He described the close friendships that developed between Souter and others on the court, most notably Sandra Day O'Connor. He also described the despair Souter felt in the last few years with the court tilting so far to the right citing some decisions as unbeliebvably tortured. Souter was glad to go and it showed.

Stuart Taylor (none / 0) (#30)
by NMvoiceofreason on Mon May 04, 2009 at 05:29:37 PM EST

Is more of what I would say... center right. He (like me) is old enough to remember an age when just because you were right or left didn't mean you were an idiot, or not worth listening to on an issue. Yes, he tends to get his facts from the right-wing media outlets, just as I get mine from the left-wing media outlets. But point him at facts, at real sources, at indisputable logic, and he will see it and follow. His first answer to me was quite harsh. My answer to him led to a dialogue. I think BTD's experience was similar. I have people like Stuart in my family (they were even Bush Pioneers, went to the BBQs in Crawford, etc). Don't be surprised if he has a conservative, skeptical perspective. But he will listen to reason.

Don't be fooled. (none / 0) (#34)
by oldpro on Mon May 04, 2009 at 06:32:04 PM EST

Listening to reason is one thing...acting on it is quite another. The former serves well at a dinner party, the latter serves better for governing.


: P. S. In other words, (none / 0) (#35)
by oldpro on Mon May 04, 2009 at 06:33:09 PM EST

nevermind what they say. Watch what they do.