Commentary Magazine


Arlen Specter and Al Franken and Perry Mason

Al Franken, not wanting to be thought a lightweight, talked about Perry Mason. He also said some foolish things suggesting the Voting Rights Act, contrary to the views of all the sitting justices, isn’t constitutionally suspect in the least. Arlen Specter, not wanting to lose a Democratic primary, said everyone is making too much of a fuss about her speeches. In short, not much has happened in the last few hours.

A few points are in order. I must think that those who favored another nominee, a Diane Wood for example, must be shaking their heads. Sotomayor has given no indication she has much to offer for those seeking to further liberal jurisprudence. She was forced to mouth platitudes that liberals have sneered at for years (e.g. judges don’t make the law, empathy is not relevant). It is hard to think of her going toe-to-to with any of the five legal conservatives on the Court.

Second, Ricci is her weak point — the instance in which she allowed her racial politics to infect her judging. As Wendy Long points out, she has badly misrepresented what occured in that case. Her dissembling here is disturbing and bolsters the sense that in fact she tried to bury a “hard” case.

Third, I haven’t counted, but she said probably a dozen or more times that she will be “bound by precedent” or “follow precedent.” Hogwash. She is going to the Supreme Court where the cases without clear precendent, or with conflicting precedents, or with advocates seeking to overturn precedent wind up. It is a dodge to say she’ll just follow the Supreme Court. She will be on the Court. And this, of course, gets back to the nagging sense that her speeches and advocacy are not abberations but provide the real insight into how she will judge once given that lifetime appointment and freed from the constraints of a circuit court judge.

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