Politics and substance in the Sotomayor nomination

by
Frank Kaufmann

May 31, 2009

We are moving toward a just society.

Not because we are seeing things in the moment grow increasingly just, but because the instruments
necessary for justice are gradually falling into place.

Injustice is possible under conditions of imbalance of power, and under conditions of shadow and
secrecy.

The communications revolution (spawned by the popular use of internet technology) of the past 10 - 15
years is eroding both these necessary conditions for injustice.

Two things remain missing to complete more sound and rapid progress. These are: 1. Some form of
religion in our midst that is void of petty conflict and parochialism, and 2. the evolution from knowing
to doing among the increasingly empowered "common" people.

A wholesome and orderly society requires harmony and collaboration among its religious institutions,
its political institutions, and its economic institutions. These core pillars are supported by the academy,
journalism, and the arts and entertainment.

The population at large is becoming increasingly knowledgeable and expert about society's core pillars
little by little. This increasingly widespread knowing will make for a better society, provided a helpful
and reliable spiritual element can arise, and if increased knowing can be translated into increased
doing, informed action.

Our latest growth of knowledge has come in the area of economics, even at the complex levels of
banking, finance, and international, economic relations. This is because, rampant greed collapsed the
towers of the economy on each of us personally. We have learned and are learning about economics and
finance in the effort to survive. In seemingly no time at all, the same guy beside me at the bar who used
to make be feel like an idiot for
not knowing what quarter
Gretsky's 700th goal was scored,
now makes me feel like an idiot
for not getting exactly how accrual
basis accounting doesn't really
work for equity REITs. How and
when did that happen?

On Tuesday, President Obama

nominated Sonia Sotomayor to
replace David Souter on the
Supreme Court.
Due the the poverty and superficiality of most news media (especially cable news networks), it will
probably be sometime before idiot-Frank's bar friend will have much to say about libertarian,
constructionist, or originalist judical philosophies, but he will know that the Sotomayor nomination
makes Republicans crazy.

Why though? What even allowed Judge Sotomayor to be positioned to receive Obama's nomination?
Answer? Her 1991 appointment to U.S. District Court for the Southern District of New York by George
H.W. Bush.

Bush? Then surely she must be a moderate since a major stepping stone in her rise to this moment
came at the hands of a Republican president?

In fact no. That lower federal position was approved by GHW Bush as part of the simple horse-trading
on which no major political figure ever spends political capital. It was Moynihan's turn to pick,
D'Amato's turn to let it go, and the president's turn to leave cease-fires in place. (See Byron York,
Washington Examiner, May 26). So the Bush notch in the belt is greatly helpful for the politics of it all
(from President's and the Democrat's point of view), but it is unrelated to the substance of the issues at
hand, and to why there is a fight over Sotomayor at all.

Wendy Long of The National Review (May 29) helps us understand Republican opposition to
Sotomayor. Long identifies three bright lines in Sotomayor's record for anyone interested in moving
beyond politics to substance, people more concerned with issues than with the titilating gotcha rants
that fuel cable news ratings. These substantial moments are a 1996 law review article said to support
"Legal Realism," a 2002 law review article dealing with race, gender, and ethnicity, and a 2005
appearance at Duke Law School stating that appellate courts make policy.

The sum of Long's notes helps us grasp the fact that the substance of what is at stake with this
nomination has to do with what is called "judicial restraint," (i.e., preference for the impartial
application of neutral principles) on the part of conservatives, as opposed to what conservatives often
call "judicial activism," the label they give to judicial-philosophical impulses of liberals or
progressives.

It is time that these categories, like so many others have in in recent times, yield to a more subtle,
youthful, creative, and energetic bent of mind. The entrenched arguments that stand fast in the
structures of battle and conquest fairly well have been perfected. A thinking person should be capable
of seeing the wisdom in judicial restraint, every bit as much finding the same degree of wisdom and
promise in judicial activism. The very fact that both positions are held passionately all but establish that
wisdom and value lies at least in part in both impulses.

It is unlikely that a higher and more profound judicial philosophy with the power to substantially
advance the ideal of justice will arise in the already fiery and petty habit of battle that instantly ignited
following Sotomayor's nomination.

But surely it is not too much to hope that we can do with questions of justice what we just so quickly
did with economics. We have begun to envision more wholesome and more balanced possibilities
embracing profit and social care in the way forward. Is it not possible for a better dialogue to emerge in
the arena of judicial philosophies? One that allows the emergence of softer, more constructive, less
embattled thought, thinking that steps away from old battle lines and is drawn in humility toward the
dream and the light of a just society.

Frank Kaufmann is the director of the Inter Religious Federation for World Peace
The opinions here are his own