So far, Gallup, Fox, Pew, and Rasmussen have released polling on whether the public thinks Elana Kagan should be confirmed or not. Compared to polling from these same four outlets at the same point in the Alito and Sotomayor confirmation process, Kagan lags behind (see Miers, Alito, Sotomayor, and Kagan for the Rasmussen polls, and here for all other polls).
Sotomayor: +18.2% (mid-June 2009)
48.0%--29.8%
Alito: +12.3% (mid-December 2005)
37.3%--25.0%
Kagan: +9.0% 37.8%--28.8%
Miers: +1.5 (late-October 2005)
35.5%--34.0%
Kagan has a net positive "confirm" of 9%. While that puts her well clear of the failed nomination of Harriet Miers, that is half of what Sonia Sotomayor had in mid-June of 2009 according to these four polling firms, and even less than Samuel Alito's numbers in mid-December of 2005.
While it still seems likely that Kagan will be confirmed, her numbers are low enough that a bad revelation or two might cause real problems. Even absent such a moment, the general lack of strong feeling on the nomination (another area where Rasmussen is an hysterical outlier, incidentally) means that there will be little political cost to Senators no matter how they vote. There is not much public engagement on this fight, leaving this nomination a largely internal affair for the Senate.
I had an interesting discussion with someone in which it was wondered why Sonia Sotomayor wasn't questioned/rumored to be a lesbian as much as now. Divorced in 1983 and engaged one other time, "uppity" woman, active with women's groups, distinctly masculine voice... you know the drill. She replied that perhaps it was because Sotomayor was married and that put an end to the speculation.
Of course, marriage has always been an institution that gay, lesbian and bisexual individuals have used, for better or worse, to put an end to harrassment/rumors from family and community members. In fact, I think Charlie Crist did it just so he could get on the shortlist for VP in 2008. I even know several gay friends of mine who were married- some with kids- and came out of the closet later in life.
Which is why I don't expect pieces like this to put an end to the speculation:
Elena Kagan is not a lesbian, one of her best friends told POLITICO Tuesday night, responding to persistent rumors and innuendo about the Supreme Court nominee's personal life.
"I've known her for most of her adult life and I know she's straight," said Sarah Walzer, Kagan's roommate in law school and a close friend since then. "She dated men when we were in law school, we talked about men - who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago - and she just didn't find the right person."
Walzer, half amused and half appalled to be discussing her friend's sexual orientation, agreed to be interviewed after Kagan's supporters decided they should tactfully put an end to the rumor, which White House officials had already tried to squelch in background interviews with reporters. She said she decided to talk to POLITICO because the discussion of Kagan's personal life has become a "distraction."
"It's taking away from substantive discussion of the issues from a really substantive person who deserves to be given the opportunity to address the substantive issues," she said.
Another friend, former New York Governor Eliot Spitzer, a member of Kagan's social circle at Princeton University, wanted to make the same point as Walzer. "I did not go out with her, but other guys did," he said in an email Tuesday night. "I don't think it is my place to say more."
The reason is because in this culture, I've found that not being married at Kagan's age or, as Kagan's best friend put it, "didn't find the right person" is, to many, the same as being a lesbian. What's one of the most common things parents tell their kids when they come out of the closet? You guessed it- "Maybe you just haven't found the right guy/girl yet."
So while I'm hearing a lot of "well, that's that" from a lot of my peers as if it will put an end to the speculation, I doubt it will at all. The reason I think that is two fold. First, imagine if Lindsey Graham's or Charlie Crist's close friend came out and said the same thing. More people would chuckle and shake their head than believe it. Second, in the eyes of many, women of Kagan's stature, looks, romantic situation, etc. will always be suspicious. Culture, and people's personal feelings derived from it, simply trump news reports and sources when it comes to this kind of thing.
In case you hadn't noticed, the Sotomayor hearings were broadcast this last week from somewhere in LookingGlassLand-a place where an all-white committee of Senators questioned a Latina nominee for hours on end, and the all-white-male Republican contingent spent the largest chunk of its time cross-questioning her on whether she was a racist, and if not, how could she prove it to them?
Of course there were problems with this approach. Such as the complete lack of judicial record supporting their accusations. And that's precisely what gave the proceedings their utterly surreal character, leaving us only to wonder if it was more Lewis Carroll or George Orwell. If MSNBC were half as savvy as they think they are, this is the question they'd be asking folks to call in and vote on. But, of course, they've got Pat Buchanan doing commentary for them. So what are the chances of that?
Yes, everyone with half a brain or more knows that it's utterly surreal. But what's lacking, generally is the vocabulary to say anything more precise than that. And that's symptomatic of a very big problem indeed. In fact, at bottom it's the same problem we saw in Sotomayor herself, as she repeatedly told the world that she had no judicial philosophy. (In fact, philosophy gave her hives, and might possibly even send her into anaphylactic shock!) No philosophy for her, nohow.
Pardon me for not believing a word of it, even if Sotomayor herself actually did.
What's the connection here? Simple: At its most basic, ideology means nothing more than how you slice up the world-or at least the human part of it. Who are the players? And what are their relationships? Kings over subjects-with virtually nothing owed by Kings, except to God? Lords over vassals-with a system of mutual, though vastly unequal obligations? Slaveowners and slaves-with slavowners alone defining the limits of absolute power over those who have none? Or citizens with constitutionally-recognized rights and equal protection for all? These are the big-picture examples of how political ideology is political ontology (the branch of philosophy dealing with questions of existence). And it's quite literally impossible to function without one, conscious or not, whether you know it or not.
The right has a very well-developed multi-billion dollar machine in place to constantly articulate its ideology, and apply it to any situations that happen to emerge. The fact that its ideology is almost always contradictory and incoherent is entirely irrelevant. They're busy cranking it out at mass industrial production levels, and if you're busy pointing out contradictions at cottage industry levels, then you're not cranking out your own ideology, and you're definitely not doing it at mass industrial levels. (Or, to put it another way, for the past 40 years, the right has been involved in a Gramscian culture war/war of position, and the left has been AWOL.)
Actually, the Democratic establishment has come up with it's own ideology-the "we don't have an ideology" ideology. Which leaves the rest of us tearing our hair out, screaming "Why the hell not?" Because not having an ideology of your own essentially means accepting the other guys ideology, their way of cutting up the world, and then trying to get your goals achieved playing their game by their rules with their set of cards-which, of course, they have diligently marked back during the Nixon Administration. In fact, it doesn't matter if you're playing 11-dimensional chess. If you let the other guy define everything, the game is hari-kari (see, "Lather," Jefferson Airplane),
Sonia Sotomayor's confirmation hearings began today at 10 a.m. However, Senator Arlen Specter, who sits on the Judiciary committee holding the hearings, didn't show up until 2 pm:
Arlen Specter regularly groused about sparse attendance at Senate Judiciary Committee meetings when he was the chairman.
But he was in no hurry to show up today, now that he's been relegated to the second most junior slot among Democrats. (He outranks only Minnesota's newly minted Senator, Al Franken.)
Specter finally appeared when the committee resumed for a post-lunch session at 2 p.m.
Now, I have showed up late to quite a few events in my life. However, I can never remember showing up late, and then immediately complaining about other people not working hard enough. However, this is exactly what Specter did immediately upon arrival:
"I intend to ask ... about cases that the Supreme Court decided not to decide," said Specter. "The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be more helpful. In 1886, there were 1,396 cases on the docket, 451 decided. A century later, only 161 signed opinions. In 2007, only 67 signed opinions."
So, Specter shows up four hours late, and then tells the committee that the Supreme Court isn't working hard enough. And this happened just a couple days after Specter attacked his likely Democratic primary opponent, Joe Sestak, for not taking enough of an interest in the political process. Nice.
The next time you show up late for work, try immediately launching into a complaint about how people in the department next to yours don't work hard enough. I doubt that would go over very well with your co-workers, but it is at least worth testing out to see if Specter is onto something here.
Sonia Sotomayor's confirmation hearings begin today. There is every reason to expect she will sail through. However, there is still a great Sotomayor-related campaign we support to make Republicans pay a heavy political price for the racially charged attacks many of their most prominent pundits and elected officials have been using against her.
Back in late May, I suggested that we find a way to run anti-Republican, Sotomayor related ad sin key congressional districts with high percentages of Latino voters. Specifically, the idea was to run ads on Spanish language media repeating the racially charged attacks some conservatives and Republicans were making on Sotomayor. The ads would ask local Republican candidates and elected officials to denounce those attacks, but really the idea is to further exacerbate Republican problems among Latino voters.
Today, two emerging progressive netroots organizations, Presente and the PCCC, have turned this idea into reality by producing the following ad:
Now, we need to get this ad on the air. You can donate to that effort here. The ActBlue page also allows you to donate to Alan Grayson, a strong progressive from a swing district in Florida where nearly 15% of all voters are Puerto Rican. Grayson also has a deep connection with Open Left, as he now employs our co-founder, Matt Stoller.
Yesterday in my Morning Maybe diary, I quoted from Talking Points Memo on Frank Ricci, about his history of filing lawsuit--"Ricci was for 'special rights' before he was against them," I wrote, referring to the fact that he was hired in the first place only after he sued to take the place of someone who scored better than him. Why? Because he was dyslexic.
And this poor sideswitching professional "victim" is the GOP's silver buller witness against Sonia Sotomayor?
But that was only part of the story, as Dahlia Lithwick points out at Slate. Ricci's sued his employers on other occassions as well. Heck, one might even say he had a penchant for frivilous lawsuits, that is, if he was a woman, or a Puerto Rican....
I was going to write a diary about this. But then I came across this clip from Rachel Maddow, from a show that I somehow had missed. It hits all the high points I had in mind, and I don't have to go searching through archives of the NY Times from the 1980s.
Answer to the question I asked: Because that's the way the GOP wants it.
[Update on the Flip:] Some detail on his record prosecuting black voter registration activists for "voter fraud" in the 1980s.
Newt Gingrich has put up a new post on his Web site saying he shouldn't have called her a racist -- and then proceeds to go into detail about how she's a racist!
"The word 'racist' should not have been applied to Judge Sotomayor as a person," Gingrich says, "even if her words themselves are unacceptable (a fact which both President Obama and his Press Secretary, Robert Gibbs, have since admitted)."
Then he goes into all sorts of details about the "wise Latina" comment, the intricacies of the New Haven firefighters case, and other objections he has to Sotomayor. At each juncture, he borrows a line from Fox News: "You Read, You Decide."
Well, at least Gingrich does us the favor of underscoring the folly of the "pragmatic" but utterly mistaken response to apologize--when I explained there was absolutely no reason to (in my diary, "What Sotomayor ACTUALLY Said, And Why No Apology Is Necessary"). That's far and away the strongest thing he's got going for him. The rest is just warmed over racist BS table scraps.
In fact, Gingrich'S invocation of the "You Read, You Decide" mantra is actually used to distance himself from any engagement with Sotomayor's actual record. It is best comprehended as an of performance, a ritual invocation of the gods of Faux News, rather than any serious sort of argument. The purpose, quite simply, is to stir up outrage, and to throw in the shabbiest imaginable appearance of rationality, due to the lingering prestige rationality still manages to command.
1. Sotomayor Cruising Toward Confirmation Another poll came out today showing Sonia Sotomayoor cruising toward confirmation. The AP / GfK poll shows 50% of the country favoring Sotomayor's nomination, with only 22% opposed. This is the third poll asking a direct question on Sotomayor's nomination, all of which have put her in safe territory.
A comparative look at the first three confirmation polls on the four Supreme Court nominees since 2005 show just how safe Sotomayor really is:
First Three Polls, Last Four Supreme Court Nominees Roberts: +27.3% (Confirm 51.0%--23.7%, AP, ABC and Newsweek)
Sotomayor +23.4% (Confirm 49.7%--26.3% Not Confirm, Rasmussen, AP and Gallup)
Alito: +11.4% (Confirm: 37.7%--26.3% Not Confirm, AP, Newsweek and Fox)
Miers: +8.0% (Confirm 36.7%--28.7% Not Confirm, Pew, Fox, AP)
Public opinion on confirming Sotomayor is far closer to Roberts territory than to Alito or Miers. Roberts sailed through the nomination process, and it is a solid bet that Sotoamyor will sail through as well.
Update: Rasmussen has just released a widely outlying poll on Sotomayor today, showing the public favoring he confirmation by only 41%--36%. Even if that was included in the average, replacing the orginal Rasmussen polls, Sotomayor is still at 47.7% confirm--28.3% Not Confirm, far ahead of Alito, and still closer to Roberts.
However, consider that Rasmussen also has consistently claimed that Republicans are winning the generic congressional ballot, a finding that has consistently been repudiiated by every other pollster on the subject. They also find a lot more Republicans in the country than any other polling firm. In 2009, they are consistently skewing Republican.
2. "Strict Constructionists" Not in the Majority In looking through old supreme court polling to compile this post, I came along this interesting nugget:
ABC News/Washington Post Poll. July 21, 2005. N=500 adults nationwide. MoE ± 4.5. Fieldwork by TNS.
"Do you think the U.S. Supreme Court should base its rulings on its understanding of what the U.S. Constitution meant as it was originally written, or should the court base its rulings on its understanding of what the U.S. Constitution means in current times?"
Cuurent Meaning: 50%
Originally Written: 46%.
Unsurer: 4%
In the same vein, a Quinnpiac poll from July 2008 showed a 52%-40% majority in favor of "current realities" over "original intentions," while a Fox poll from August 2005 showed a 47%--36% plurality for "framer's intent" over "meaning in today's world." The questions were all phrased differently, but no majority ever appeared for what conservatives call the "strict constructionist" position. In fact, in two out of three polls, the "living document" argument was in the majority.
This is relevant because I can't remember a single politician ever arguing that we need judges who will interpret the Constitution in a way that is relevant to our own times, even though it appears to be the more common viewpoint among the American public. About all we ever hear from Republicans and Democrats alike is how we need strict interpretations of what the founders intended. I guess it isn't surprising that a piece of conservative rhetoric dominates our political discourse even though it is a minority position. This is hardly the only example of that happening.
Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a "bully" or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary - that male judges are more likely to be aggressive, whether in proper or improper ways.)
NOTE: I should be fundraising here, folks. I wanted to give you good reasons to support the site before rattling the old tin cup. But as often happens, instead of polishing something off I got carried away in a whole new direction, and so I've got the post below. But please consider as you read it if there is anywhere else on the net where you're likely to read this particular take. I'm sure there are some. But there are few, if any, that are situated the way that Open Left is. Please consider what that means, and act accordingly
As I noted in an earlier diary, Newt Gingrich has gone all-in with a nutjob email attack on Sotomayor. In this diary, I want to deconstruct Gingrich's attack, explicating both the lies and the racism involved. The racism is most accurately understood in terms of preserving white racial power, along the lines indicated by social dominance theory, which is a theory of group dominance. As a consequence, and a result of the civil rights revolution of the 1960s, the old power relations are largely maintained in the deceptive guise of a new dispensation. Three inter-related patterns are particularly salient for the analysis in this diary: (1) A new pseudo-egalitarian narrative, involving language such as "equal opportunity, not equal outcomes" is used to ensure against equal outcomes, while distracting attention from the fact that opportunities remain vastly unequal. (2) The realities of historical and material context are suppressed, so that a realistic critical analysis of existing conditions is rendered impossible. (3) All attention is focused on (or deflected away from) individual actors, about whom narratives can readily be shape-shifted on the spot.
Before turning to examine Gingrich's email directly, I want to turn to an illuminating NY Times op-ed, "Rogues, Robes and Racists" by Charles M. Blow, which begins thus:
Someone pinch me. I must be dreaming. Some of the same Republicans who have wielded the hot blade of racial divisiveness for years, are now calling Sonia Sotomayor, the Supreme Court nominee, a racist. Oh, the hypocrisy!
The same Newt Gingrich who once said that bilingual education was like teaching "the language of living in a ghetto" tweeted that Sotomayor is a "Latina woman racist." The same Rush Limbaugh who once told a black caller to "take that bone out of your nose and call me back" called Sotomayor a "reverse racist." The same Tom Tancredo, a former congressman, who once called Miami, which has a mostly Hispanic population, "a third world country" said that Sotomayor "appears to be a racist."
This is rich.
Even Michael Steele, the bungling chairman of The Willie Horton Party knows that the Republicans have no standing on this issue. In an interview published in GQ magazine in March, he was asked: "Why do you think so few nonwhite Americans support the Republican Party right now?" His response: "Cause we have offered them nothing! And the impression we've created is that we don't give a damn about them or we just outright don't like them." Ding, ding, ding, ding.
As Blow's first few paragraphs make plain, there is little doubt that those leading the attacks on Sotomayor are themselves infected with the very same racism they claim to see in her. And he proceeds to demonstrate the vacuity of their attacks in greater detail. Yet, even his explication suffers from an over-concentration on the individual actors within the field of sustained white privilege, as opposed to a focus on the field itself. Blow is working primarily within the constraints of this new dispensation, and so the most he can possibly achieve is to reveal contradictions within it. He does this quite brilliantly, but such a strategy is necessarily limited in how far it can go.
Legal news-junkies will immediately recognize that the title of this diary is a list of some notable decisions by Judge Sonia Sotomayor, instead of an obscure legal partnership in... Omaha, maybe.
"Discussion" of Sotomayor's nomination to the Supreme Court in the mainstream media will probably buzz around Ricci, with some carry-over into Raniola, but if Sotomayor's opponents had any real regard for the truth of the situation (and they don't), they would forget about trying to convict the nominee of extra-judicial "empathy" in connection with her high-profile rulings in the area of work-place and employment discrimination, and concentrate instead on the only instance where Sotomayor may have actually jumped the tracks of judicial restraint, and written an opinion based on sympathy for a plaintiff and revulsion for one of the most miserable statutes (SLUSA) ever enacted in the ongoing transformation of federal law into a shield for the ultra-rich against the rest of us, and that would be Judge Sotomayor's opinion in Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir. 2005), and its sequels.
The Securities Litigation Uniform Standards Act of 1998 (SLUSA) throws class-action suits against deceptive stockbrokers out of state courts, in the same way that the Private Securities Litigation Reform Act (PSLRA) had previously thrown them out of federal court.
What a beautiful statute!
Now annoying little investors can't clog any kind of courts with class-action suits against our benevolent Wall Street masters, no matter how deceitful they may be!
But SLUSA only specifically denied class-action suits based on purchasing trash stocks, and Sotomayor opined that suits based on retaining trash-stock could proceed in the state courts.
This decision was crushed 8-0 in the Supreme Court, with a majority opinion composed by Justice John Paul Stevens, an icon of the liberal judiciary.
Anyone who bothers to read Judge Sotomayor's meticulous opinion in Raniola, "addressing every one of the trial judge's rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country"...
For anyone who reads that paradigm of unreversible case-law it's almost impossible to recognize the same hand in the tenuous reasoning which allowed Dabit's case to proceed against Merrill Lynch, and try as I may I can't imagine how Judge Sotomayor could have written such a thing except out of sympathy for all the little people who have been bankrupted by Wall Street gangsters and their stooges in Congress.
Pam Karlan would have been my first choice to replace David Souter, and I virtually never agree with anything Barack Obama says or does...
But I applaud the nomination of Judge Sonia Sotomayor for the Supreme Court, and on the day when she is finally confirmed, I will literally stand up and cheer!
One key focus of attacks on Sonia Sotomayor is her decision in the Ricci case, rejecting a claim of "reverse racism." The first problem with these attacks is that they don't pass the laugh test: Sotomayor was simply following the law, the exact opposite of the activism she's accused of. But the deeper problem is the utter ignorance on which these attacks depend--a cultivated ignorance that goes to the very heart of the 30+ year war against affirmative action.
More than 50 years after Brown v. Board of Education, blacks and other minorities on the whole still receive inferior education, have fewer resources and social connections to facilitate their advancement, face systemic, though largely unconscious discrimination, and suffer from internalized barriers to achievement. While we'd all like to live in a colorblind world, where race and gender would not matter and would never need to be considered, the reality is that we're still very, very far from that ideal state, and simply wishing we were there only distracts us from confronting the reality of the struggle that still remains to get there.
Because significant barriers to equality remain, we have civil rights laws on the books that protect women and minorities from practices that may seem fair on their face, but that have a disparate impact, such that qualified individuals are screened out in significantly higher numbers. The Ricci case involved such a practice, a test for promotion in the fire department, which was afterwards found to be unintentionally discriminatory, and therefore was thrown out by the city of New Haven. In response, Frank Ricci, a white fire-fighter who scored high on the test, sued New Haven, claiming "reverse discrimination." But New Haven was simply following the law. And when Sotomayor rejected Ricci's lawsuit, she was following the law as well. Far from being an "activist judge", she was following both the written law, and well-established precedent. As Stanford law professor Richard Thompson Ford (who appeared on Rachel Maddow's show yesterday) wrote in Slate:
New Haven's decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional. Ricci's claim is that the city's effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).
This argument would undermine an important part of modern civil rights law. Some of Sotomayor's critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn't a thing of the past yet. In fact, we haven't corrected the lingering effects of racism that is in the past. It's precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law....
NOTE: I wrote this diary Friday evening. After finishing it, I discovered that Newt Gingrich had gone all-in with full-throttle nutjob email attack on Sotomayor, all built upon the egregious mis-representation dealt with below. Rather than re-write this diary, I will follow up with a separate one dealing in detail with Newt's demented attack email.
The Ed Show started off Friday by calling it "a big mistake" that Obama was apologizing for one sentence by Sonia Sotomayor taken out of context from a 2001 speech, A Latina Judge's Voice. And Ed was absolutely right. Taken out of context, it can be used against her, and so some response could certainly be called for. But (1) there's all the difference in the world between an apology and clarification, and (2) as Ed pointed out, it should have been matched with harsh words for those who've been demonizing her--or, better yet, more subtly, praise for John Cornyn for repudiating Gingrich and Limbaugh for their demonizing attacks.
Before saying anything else, we need to be clear that this is the best attack point they have. And what is it? One sentence--discussing race and sex discrimination cases--that's part of a several paragraphs long argument that can't be fully understood in isolation. Which is why we will go through her argument on the flip. And yet, even though it can't be fully understood when quoted in isolation, it clearly is not what Gingrich, for example, is making it out to be.
Here is the sentence:
"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."
Remember, she's discussing race & gender cases, and she is expressing the hope that a wise Latina woman would reach a better conclusion in those sorts of cases, by virtue of her experiences. She is not expressing certainty, and she's not talking about all cases, but only about those concerning race and gender discrimination. Now here's the Wall Street Journal reporting on what Gingrich turned that into (immediately following their quote of the actual sentence):
"Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman.' Wouldn't they have to withdraw?" asked former House Speaker Newt Gingrich on his Web site. "New racism is no better than old racism."
"Makes me better than"? Where did Sotomayor say that? It's obvious she did not.
And for anyone who's paid attention to Gingrich over the years, this sort of sloppy, self-serving misreading of others is just par for the course. He's an incredibly bad listener. But to really understand how far off the mark he is (and he's not the only one), we need to read Sotomayor's remarks in the context of at least several paragraphs, where she lays out different aspects of her thinking....
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