Update III: BAB’s Pick For The Supreme Court

Constitution,Feminism,Gender,Law,libertarianism,Liberty,Neoconservatism,Race,Reason,The Courts


Who said the following: “Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free stuff’ as the political system will permit them to extract”? Answer: Justice Janice Rogers Brown, the black, conservative judge Bush passed-up on nominating for the SCOTUS. This is just one of Brown’s many just utterances. At the time, President Bush’s lickspittles refused to concede that he too considered Rogers Brown “outside the mainstream,” to use the Democrats’ line.

By now you’ve heard that the president intends to nominate Sonia Sotomayor to replace Justice Souter on the Supreme Court. The Sotomayor quotes making the rounds on the blogs are:

“I would 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. … Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.”

Janice Brown quotes … Thucydides, F.A. Hayek, and Burke. That’s so white male, so yesterday; so wrong.

Well, King Obama did say he was looking for “empathy” in a nominee, also “code for injecting liberal ideology into the law.

Race hustler the Rev. Al Sharpton “called the choice ‘prudent’ and “groundbreaking.'”

Just in case anyone’s taken in by the Republicans’ new-found fidelity for the Constitution, Liz Cheney babbled on FoxNew about the wonders of the shattered glass ceiling, adding a couple of Constitutional caveats with respect to the impending shoo-in. It’s hard to keep up with these shifty neocons.

Update I:In “The Case Against Sotomayor,” Jeffrey Rosen, legal affairs editor at The New Republic, confirms, indirectly, what we’ve all known all along: 1) If a candidate is a minority with degrees from the Ivy League, then he or she is invariably a mediocrity. 2) Obama, who’s married to a woman of this class, is also wedded to entrenching her ilk everywhere. 3) Don’t forget that Bush’s goofy Harriet Myers had neither the required education, experience, or intellect.

Writes Rosen:

“The most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it. ‘She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.’ (During one argument, an elderly judicial colleague is said to have leaned over and said, ‘Will you please stop talking and let them talk?’) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: ‘She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.’

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained ‘no reference whatsoever to the constitutional issues at the core of this case.’ (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)”

Update II (May 27): I find the media’s judicial jiu-jitsu absolutely unconscionable. I think they don’t know what they do, so corrupt are they. Instead of reporting the record of Sotomayor, good and bad, the menagerie of morons that is the American media has taken on the construction of a meta-argument against the GOP’s yet-to-be-made case against Sotomayor, if you get my drift. This time, the media morons are doing Obama’s bidding in the most subtle of ways.

This is the argument issuing equally from MSNBC’s Andrea Mitchell as well as from the lowliest Democratic strategist: Republicans cannot oppose Sotomayor without risking the ire of Hispanics, which they need to court in order to avoid death by demographics. In one fell swoop, and contrary to the mandate of journalism, the Obama media has established two, allegedly incontrovertible truths:

1) That the GOP’s appeal is altered by Hispanics. As far as I can tell, the GOP has never enjoyed even the tentative support of Hispanics.
2) The GOP needs Hispanics to stay alive. That’s like saying that an anaerobic organism needs oxygen to survive. Sure, he can handle oxygen; but does he need it to live? Hardly.

Watch and see: now the media, always slightly smarter than the Republicans, will have the latter twisting like Cirque du Soleil contortionists, so as to, 1) appease and court Hispanics. 2) Do the diversity dance. 3) Water-down a substantive critique of Sotomayor.

Mission accomplished.

Update III (May 28): As someone who has written on anti-trust, and understands the issues, I find this article highlighting Justice Brown’s misapprehension of one such case, smarmy in the extreme — and typical of the apples oranges error, to say nothing of the fanaticism found in so many libertarian quarters. From the fact that Brown does not adhere to my own purist understanding of anti-trust legislation — an understanding that is quite radical—I must conclude that she is an enemy of property? Are you nuts?!

This is a childish tantrum aimed, not at reasoned argument, but at displaying the writer’s rad credentials. It is, moreover, a disingenuous diatribe because intellectually dishonest; it ignores that there is a debate about anti-trust among freedom-loving intellectuals.

The same case can be made with respect to a judge who enforces patent and copyright law. I vehemently disagree with this branch of the law, but for me to pretend there is not a vigorous debate among libertarians about copyright and patent law would be worse than intellectually dishonest; it would be shameful.

Ultimately, if you can’t distinguish a patriot like Brown from a Sotomayor, well then, you deserve to labor under a statist, old succubus such as Sotomayor — literally.

I’m trying to keep it real, here.

10 thoughts on “Update III: BAB’s Pick For The Supreme Court

  1. Myron Pauli

    Justice Brown is an EXTREMIST who believes in the wacky doctrine of property rights which everyone (e.g. the “mainstream”) knows is nowhere in the Constitution…. well, in fairness, Judge Sotomayor did uphold the free speech rights of a cop who got fired for sending “racist” mail to others privately off duty. Anyway, I had little expectations out of Barry Hussein. P.S. Andrew Napolitano of FOX News’ Freedom Watch, another extremist, would also be good – but I have no delusions that anyone who believes in natural law and limited government will get on the Supreme Court.

  2. Bob Harrison

    “The culture of the word is being extinguished by the culture of the camera. Politicians no longer have positions they have photo-ops. To be or not to be is no longer the question. The question is: how do you feel.”
    “Instead of celebrating capitalism’s virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism.”
    Judge Brown is clearly “out of the mainstream,” which is why she would have made an excellent SCOTUS choice!

    [Are these her words? Heaven’s she is as brilliant as she is freedom-loving!]

  3. Barbara Grant

    Oh, please. Ms. Sotomayor’s remarks are both racist and sexist. Stating, as she does, that “a wise Latina…would reach a better conclusion than a white male” implies that she does not value diversity (different people with different experiences who arrive at different conclusions), but instead would desire to impose a narrow racially- and gender-driven agenda on an entire court, because the background she comes from is “better” for the job of passing judgment than the backgrounds of white males similarly appointed.

    This does not bode well for the Supreme Court; perhaps she’ll be “Borked” but I doubt it. Yes, Janice Rogers Brown would be a far better pick than Ms. Sotomayor; but remember, Saul Alinksy’s disciple Barack Obama is making the picks. Did I neglect to mention that in my junior high school history class in the early 1970s, we were taught about Alinsky’s legacy, and told that it was a sad thing when he died? Leftists were working that agenda back then, teaching this tripe to kids like me in the Los Angeles City public schools. That any of us emerged with a brain is a miracle.

    [I hope you allowed yourself a happy moment when Alinsky died.]

  4. Virgil

    “I would 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.”

    Yes, the perpetually evil and stupid male whitey. You know, the same guys who came up with natural law theory, the Magna Carta, habeas corpus, the US Constitution, and other apparently poorly concluded ideas. If only St. Augustine, St. Thomas Aquinas, John Locke, and Thomas Jefferson had been wise Latina women.

    [Well put! LOL!]

  5. Myron Pauli

    Here is Extremist Judge Janice Rogers Brown’s notorious speech:
    Ironically, we may be better off with a mediocre leftist-statist schnook than with an intelligent leftist-statist who might have more influence and do more damage. Anyway, as far as I am concerned, Benjamin Nathan Cardozo was our nation’s first Hispanic Supreme Court judge – but I guess a Jew cannot be a Hispanic just like a white person cannot be African:
    So stop claiming that you lived in South Africa! Maybe the lawsuit over white-African-Americans will go to Judge Sotomayer for her wise opinion as a Latina.

  6. Vic Jones

    Everytime I hear the “multicultural” claptrap about the “white Euro-centric male”, I always wonder – does that refer to Marx or von Mises, Calvin or Voltaire, Aquinas or Marquis de Sade. My my, they’re all so alike I guess it’s okay to sacrifice each of them to an abstraction. But then, I thought Obama didn’t want to appoint someone who gets lost in abstractions.

  7. Van Wijk

    Ah yes. We must appeal more to those who want to see us dead or displaced.

  8. Bob Schaefer

    Excellent article, as usual. Key concept is: “Instead of reporting the record of Sotomayor, good and bad, the menagerie of morons…”

    Menagerie of morons! Priceless.

    It’s the good AND the bad that must be reported, that makes us informed citizens.

    In that spirit, I submit this article on Judge Brown:

    “Brown Won’t Deliver On Property Rights.”


    As I learned in local electoral politics, what a politician says in a campaign can be different than what that politician does when the leather hits the road. (Supreme Court Justices are politicians, first and foremost.) Few politicians hold convictions they won’t surrender to the narcotic of power.

    I agree that Sotomayor’s confirmation is a sure thing. Sad. All we can do is hope she has some sort of epiphany. And we can pray for the continued health of the other, more freedom-inclined justices.

  9. James

    I have had the same thought that Myron Pauli posted, to wit, Sotomayor is a dimwit that will plainly show the need for Congress to re-assert its prerogative to impeach SCOTUS justices. Since there is zero chance that Obama will appoint anyone willing to stick to the Constitution, I think we’re better off allowing him to seat Sotomayor.

    Let her stink the joint up until she has to be shown the door.

  10. Myron Pauli

    Thank you Bob S. for the mises.org blog on Judges Brown and Sotomayer. Don’t count on “libertarian judges” to restore freedom – freedom has to come from below (the people to their legislators) rather than from Black Robed Messiahs.

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