On the Loyal Opposition

With the confirmation hearings for Sonia Sotomayor beginning today, I thought it timely to return to this unique part of American democracy for today's rant. In large part I approach this topic with gratitude for a system in which the deliberative Senate has the opportunity to question the president's nominees to key posts, most especially the Supreme Court.

But I am also bothered by the role being played by Senate Republicans in trying to define the terms of what the judicial branch is to do. The insistence that the courts are to practice what Justice Scalia has called "strict constructionsim" (which he and the other conservatives on the court immediately abandon in cases involving eminent domain, voting rights, and campaign finance) is annoying, as no such philosophy exists or has existed, save in the minds of reactionaries who see anything progressive as inherently degenerate. This is particularly galling, given the disdain with which the right views the judiciary whenever a ruling goes against conservative thought.

This op-ed piece by Senator Jeff Sessions, the de facto Republican voice on the SCOTUS hearings made this argument in a particularly flimsy manner, rife as it is with misinterpretations, generalizations, and contradictions. Let's get to it.

For starters, we have the tired argument against empathy, of which more later. Sticking to the Joe-the-plumber-style GOP talking points, Sessions states that empathy "says that justice should not be blind, that it should not be based only on the law and the Constitution, but that it should take a judge's own personal and political feelings into account." Ignoring the fact is always the case that a human judge is influenced by his/her own subjectivity, Sessions seems to argue for an automon-type approach to the judicial process. This, of course is interesting, given the highly emotional nature of right-wing positions on issues ranging from abortion ("baby-killing!" they shout) to immigration ("stealing American jobs!" they cry).

Sessions follows this with (to use the terminology of classical rhetoric, a la freshman comp classes) an appeal to pathos, when he asks "if you or I step into a courtroom, shouldn't we be able to do so with confidence that we will get a fair day in court no matter our background, experience, or politics — and no matter the background, experience, or politics of the judge?" Failing to acknowledge that historically the vast majority of judges have been old white men, often ruling against women, minorities, and the poor and disenfranchised, Sessions appeals to equality, but only inasmuch as it applies to people who are--ethnically, culturally, and socially--like him.

To accomplish this, the Senator refers (predictably) to the recent Supreme Court ruling in the Ricci case. As if confirmation to the Supreme Court required one to have a perfect batting average vis-a-vis the Court, Sessions argues that Sotomayor's lower-court ruling on the case places her outside of the national mainstream on issues of racial diversity and affirmative action. In summarizing the case, Sessions says "Eighteen firefighters, one of whom suffers from a learning disability, studied for months to pass the city's promotion exam. They did. But the city junked the results because they didn't feel the outcome met the appropriate racial quota. Sotomayor sided with the city and even denied the firefighters a trial." Besides the use of the inaccurate term in describing the legalities of the case ("quotas"), Sessions makes a plea here for the very quality he derides--empathy.

If we are to expect, value, and even demand equal treatment for both parties, the fact--so often cited by conservative pundits in referring to this case--that the plaintiff "suffers from a learning disability" and made great sacrifices to study for this exam is entirely irrelevant. Clearly what we see in this fallacious argument is politicking at its worst. To base a claim on a constitutional value that one then disregards when it is convenient, to oppose a highly qualified nominee simply because that person's ideology is contrary to one's own, to vilify a moderate as a radical while ignoring the radical nature of one's own position in the (hopefully) vain attempt to shift the political spectrum--all of this is to perpetuate the win-at-all-costs Rovian politics that sullied the Bush administration and led to intellectual hollowness of the GOP and its current exile from the national political landscape.

On second thought, let's hear more from Senator Sessions. I'm sure it will only make Judge Sotomayor and President Obama look that much more impressive by comparison...