Peggy Noonan to Republicans: Let's Play Grown-Up

After hearing conservatives describe Sonia Sotomayor as a dumb racist ideological evil bitch, I am pleased to see a voice of reason emerge from the right. The Wall Street Journal has published an opinion essay by Peggy Noonan that raises many of the problems that I have identified regarding the conservative response to Sotomayor.

This blog has been very sympathetic to the GOP in order to foster open debate. I have written numerous articles criticizing liberals -- even getting cited several times by Glenn Reynolds and many other conservatives. I have defended Michael Steele, George Bush, Sarah Palin, and even Rush Limbaugh from unfair criticism. But I have been unable to validate the "other side" in my response to Republican criticism of Sotomayor. Most of the popular conservative critiques of Sotomayor are inaccurate, deceitful, hypocritical, nasty, and politically suicidal.

As someone who desires a multi-party system, the GOP's recent implosion is disheartening. The country almost has just 1.5 parties at the moment. Unless the Republican Party embraces moderate positions in the shortrun, it will continue to live on the fringe of national politics. Parties have had to adjust historically. The Republican Party was the original home of the "Massachusetts Liberal." The Democrats were the slaveowning confederates. Clearly, historical developments caused the parties to shift in order to survive.

Outside of self-interest, the public deserves reasoned debate about judicial appointments. Personally, I believe that the Framers placed the appointments process in the political branches because they knew that ideology is relevant to judging. Even if they did so for other reasons, by delegating authority over judicial appointments to the President and the Senate, the Framers have created an inherently political process. Yet, both sides of the aisle are feigning a meltdown over the prospect of a nominee having a particular ideological bent. The deceitful shenanigans regarding ideology, not to mention "empathy," are pure distractions.

Most educated individuals have formed some type of awareness and opinion (even if tentative) of the most compelling issues that our nation and the world community face. These are the type of issues the Supreme Court analyzes. The fact that judges have a particular ideological background does not mean that they are closed to debate or to precedent. Instead, it simply means that when they review and apply the law in each case, they will bring their own background to the table, and this will inform passionate debate and possibly outcomes in many instances. If you do not think Scalia or Thomas (or Ginsburg and Stevens) operate this way, you are delusional, deceitful or clueless about the Supreme Court.

Here's a clip from Noonan's essay:

Barring extraordinary revelations, Judge Sotomayor is going to be confirmed. She's going to win. She does not appear to be as liberal or left-wing as others who could have been picked. She seems reminiscent of the justice she will replace, David Souter. She will likely come across in hearings as smart, spirited, a middle-aged woman who's lived a life of grit, determination and American-dream proving.

Republicans can be liberated by the fact that they're outnumbered and likely about to lose. They can step back, breathe in, and use the Sotomayor confirmation hearings to perform a public service: Find out what the future justice thinks and why she thinks it, explain what they think and why they think it, look at the two different philosophies, if that's what they are. Don't make it sparring, make it thinking.

Don't grill and grandstand, summon and inform. Show the respect that expresses equality and the equality that is an expression of respect. Ask and listen, get the logic, explain where you think it wrong. Fill the airwaves with thoughtful exchanges

I concur. Nevertheless, if The Onion is correct, filling the airwaves with "thoughtful exchanges" will lead to a major panic and backlash: Oh, No! It's Making Well-Reasoned Arguments Backed With Facts! Run!

Update: RNC Chair Michael Steele and Republican Senator John Cornyn(of Texas with many Latino voters) have come out condemning conservative attacks on Sotomayor.

Sotomayor = Supreme Court Pick! Plus: Anti-Conservative Talking Points

[Latest Sotomayor Update: The Audacity of Hypocrisy: Mike Huckabee Says Appointing "Maria" Sotomayor Will Lead to an "Extreme Court"]

Well, it looks like the smackdown against the smackdown worked. Obama has shown courage in the face of conservative distortion and apparently chosen Sonia Sotomayor for the bench.

Source: CNN

Anti-Conservative Talking Points
Conservatives and so-called liberals launched an effort to discredit Sotomayor as soon as Justice Souter announced his retirement. Nothing in Sotomayor's background substantiate the claims that her detractors have made.Here are some great talking points to deal with the inevitable conservative meltdown over the prospect of Sotomayor's appointment.

Incompetent
Jeffrey Rosen started this narrative with his unbalanced analysis of Sotomayor. Several sources have persuasively rebutted his flawed analysis.

Leftwing Ideologue
Conservatives are doing their best to depict Sotomayor as an unthinking leftist. But the SCOTUS blog has published a 4-part series analyzing her body of cases as an appellate judge. Her record speaks more persuasively than the conservative rhetoric.

Ideology and Judging Are Mutually Inconsistent
Both parties advance this bizarre rhetoric -- but only when the opposite party has the power to make the appointment. Decrying "ideology," liberals went after Bush's nominees, and conservatives are poised to battle Obama's choices. Both sides, however, are absolutely deceitful on this issue. Ideology is perfectly consistent with judging, and politicians throughout American history have recognized this fact. Ideology, however, does not necessarily prevent an individual judge from engaging in debate, adhering to precedent, or making reasonable conclusions about the law.

Driven by Identity
Several commentators have extracted sentences out of a speech Sotomayor delivered at the University of California at Berkeley in order to portray her as a judge governed by identity politics, rather than logic. That argument, however, severely distorts the substance of her speech, and it also ignores the extent to which identity actually matters within law. Justices from O'Connor to Scalia have made the same argument.

Lacks Judicial Temperament
Rosen, selectively drawing from reviews in the Almanac of the Federal Judiciary, depicted Sotomayor as a domineering fireball. But a comparison of the Almanac's review of Scalia reveals that the two judges both seem to have a tough and highly engaging style at oral arguments. Nevertheless, the book portrays this as a negative quality in Sotomayor and a positive one in Scalia. The disparity corresponds with negative stereotypes about strong and intelligent women.

Conclusion
Given the many ways in which opponents of Sotomayor have attempted to prevent her nomination, I am surprised that Obama followed through with it. In fact, I thought Elena Kagan would get the nod. But a lot of advocacy and responses to the distorted analysis seem to have worked. Also, Obama skillfully waited until debate had taken place before moving on her candidacy. Kudos!

Update: The White House has more extensive (and definitely better) talking points: White House Armed With Talking Points For Sotomayor Fight--Evoke Her "Empathy"

Are Young People Really Progressive As New Study Claims?

Ruy Teixeira has published a few articles (and even co-authored a book), in which he argues that the United States is becoming a more "progressive" society. Now, Teixeira and his colleague David Madland of the Center for American Progress, have released a study which concludes that the "Millennial" generation is strongly progressive (view the full report here).

In the past, I have viewed these types of studies with a high degree of skepticism. First, I believe that it is very difficult to articulate a list of factors that define an individual as "progressive." Second, public opinion is highly malleable, and people's responses to a set of specific policy questions might reflect the politics of the moment rather than longterm ideological commitment. Third, younger people's views tend to be more fluid, thus exacerbating the problem of measuring their longterm ideological commitments. In addition to these general methodological problems, I have some specific "questions" about the Teixeira and Madland study.

Voting for Obama = Progressive?
The first nine pages of the study report how well Obama performed among voters in the 18-29-year-old category. Exit poll studies have already revealed that Obama received a huge share of younger votes. Madland and Teixeira interpret this fact as an indication of the age group's progressive values: "Millennials backed Obama primarily because he reflects their progressive view of the world and progressive policy preferences. . . ."

Obama represented many things to different individuals. But as many progressives who supported Obama are recently discovering, political campaigns and governance are not the same. A lot of liberals constructed Obama as being far more progressive than other candidates -- including, Hillary Clinton and John Edwards -- without having a tangible basis for such a claim. Madland and Teixeira demonstrate that Millenials' support of Obama was far greater than their support for Kerry, but Obama and Kerry are pretty close in terms of social policy. Saying that a candidate is progressive and then voting overwhelmingly for that person does not make the candidate or the voter progressive.

Post-Gender and Post-Racialism Are Not Inherently Progressive Positions
Despite the blatant role of race and gender in the 2008 election, many political commentators have celebrated the arrival of America's new "post-racial" and "post-gender" landscape. Even though Obama ultimately won the national election on the strength of black, women, and Latino voters, many commentators view his election and Hillary Clinton's strong performance as proof of the social irrelevance of race and sex. Not only is this view contradictory, but it is not inherently "progressive" as Madland and Teixeira assume.

To Madland and Teixeira identity-blindness is a positive thing. The authors applaud the Millennials for believing that race is not a "big deal," and they enthusiastically proclaim that: "Barack Obama’s election is just the beginning—America’s postracial future is fast approaching." They make a similar observation with respect to gender: "Just as with race, gender equality is rapidly becoming a nonissue with Millennials."

Critical theorists have produced a rich body of literature that contests the idea that race- and gender-blindness produce progressive outcomes. Not only is this argument inconsistent with Millennials' support for Obama, but this view has also justified conservative resistance to policies designed to create educational diversity and equal employment opportunity.

As long as social inequities correlate with race and gender, the post-identity rhetoric will preclude an honest discussion of and solutions to inequality. Conjoined racial isolation and poverty severely limit opportunities for advancement. Dismissing race and sex in the name of progress does not alter this harsh reality.

Lack of "Context": Measuring Future Generations By Past Standards
The study also questionably measures the "progressive" ideology of the Millennials based on their support of historically contested ideas that were considered progressive to earlier generations. The study fails to articulate a new set of values that might provide a more accurate measure of how cutting-edge today's Millennials are.

The study, for example, shows that Millennials are less likely to believe in creationism, do not believe a "woman's place is in the home," favor government-sponsored health care, believe in same-sex marriage, and support a move to renewable energy and a reduction in dependence on fossil fuels. Opposing the idea that a "woman's place is in the home" might have been a radical concept (especially if she were white and wealthy) up until World War II, but the post-War era and the second wave feminist movement greatly altered societal beliefs in "women's work." The fact that today's younger people embrace concepts that centuries of social movement activity and subsequent legal reforms have legitimized does not make them more progressive. Instead, it gives them a different set point than their predecessors.

Conflating Idealism With Progressive Ideology?
Finally, several aspects of the study suggest that the opinions of the respondents correspond with age, rather than ideology. The authors cite to studies which purportedly demonstrate a continuity in ideology across an individual's lifetime. Even if these studies are accurate, age could still determine an individual's response to many of the questions in the survey.

For example, younger respondents want much more regulation and governmental involvement in economic affairs. Younger respondents are also less cynical and more trusting of the government than older respondents. The authors attempt to dismiss this fact by explaining that younger respondents are more cynical than younger persons who completed similar surveys in the past. But this qualification does not answer how today's Millennial's would have viewed politics if they lived in the past.

Youthful idealism could also explain the Millennial's embrace of post-racial and post-gender politics. Once younger people and their friends report experiences with discrimination in the workplace, then their views on the insignificance of race and sex will likely shift.

Conclusion
Because public opinion is contextual and shaped by the media, social movements, politicians and contemporaneous events, it is very difficult to discern ideological commitments from short-term viewpoints. The Madland and Teixeira study focuses on "hot-button" social issues that have informed much of the "adult" lives of the Millennials. Hillary Clinton took "the bullet" on healthcare reform in the 1990s, but today, her thinking on the subject informs the so-called progressive commitment of the Millennials. The shift in public opinion on the subject resulted from years of political activity and statutory reform that predated the 2008 election.

The older folks in the Madland and Teixeira study engaged in vigorous protests over Vietnam, racism and sexism, and they showed a commitment to progressive causes that went far beyond simply casting a vote for certain issues or candidates. Yet, Madland and Teixeira describe these individuals as being more conservative than younger people who oppose the Iraq War and think race and sex are irrelevant.

Despite my skepticism, I took the "How Progressive Are You" quiz. I scored 288 out of 400, which makes me extremely progressive. The average score among Americans is 209.5. I even slammed the Millennials. Of course, I do not know what score I would have earned 20 years ago.

Earth to Obama: Your Supreme Court Choice Is SUPPOSED to Galvanize Republicans

Democrats chose Obama because he promised change from eight years of Bush. This includes having liberal nominees for the federal courts. But many articles have portrayed Obama as seeking to avoid controversy with his choice for the Court.

But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.

Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.

The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.

After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.

Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.

If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.

Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.

The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].

Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.

Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor