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The Meaning of Sotomayor's Retreat

Listening to Sonia Sotomayor a few years ago, say at a legal conference, one would have heard a mainstream liberal -- emphasizing the superiority of her bottom-up minority experience, hinting at the role of judges in making policy and expressing skepticism about the “aspiration to impartiality.”

Listening to Sotomayor before the Senate Judiciary Committee this week, I heard what often sounded like a card-carrying member of the Federalist Society. (Though I'm not sure if they carry cards in addition to the secret handshake.) The judge's role, Sotomayor said, is ''not to make law. It is to apply the law” -- echoing a common Republican applause line used against judicial activism. The law must command “the result in every case.” The Constitution is an “immutable” document. Her “wise Latina” comment was “bad because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge." Judges should "test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not." And again: "It is very clear that I don't base my judgments on my personal experiences -- or my feelings or my biases." And again: "My record shows that at no point or time have I ever permitted my personal views or sympathies to influence the outcome of a case."

At some point, it all became more than a liberal law professor could bear. Louis Seidman of Georgetown University Law School vented:

I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate -- that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise -- to claim that fidelity to uncontested legal principles dictates results -- is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith.

What are the implications of Sotomayor’s retreat from liberal judicial theory?

First, it makes for an uninteresting confirmation process. No prospective Supreme Court justice, liberal or conservative, is going to comment directly on abortion or gay rights during his or her nomination hearing. But a serious discussion of the principles of judicial interpretation would have been instructive. Because Sotomayor generally adopted conservative language on these matters, that discussion was short circuited. A hearing with the vivid Professor Seidman would have been more intellectually satisfying.

Second, Sotomayor’s retreat involved a kind of confession that conservative legal theory is on the ascendant. To gain an easy confirmation, Sotomayor had to sound, at key moments, like John Roberts. Even facing an overwhelmingly Democratic committee and Senate, it would have been controversial for Sotomayor to sound like Thurgood Marshall or William Brennan. The political and intellectual center of gravity seems to lie with the Federalist Society -- at least when it comes to the theory of judicial interpretation.

Third, if Sotomayor eventually judges on the high court like Marshall or Brennan, it will mean that her testimony was deceptive. A blogger over at the liberal American Prospect, Adam Serwer, assumes such cynicism: “Seidman is accusing Sotomayor of dishonesty, and I think he's right: Sotomayor has been saying what she needs to say, backtracking on her previous insights, in order to get confirmed.” I hope this is not the case. But if it is, it will be the worst kind of precedent.

By Michael Gerson  | July 16, 2009; 12:20 PM ET
Categories:  Gerson  | Tags:  Michael Gerson  
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Comments

It's only the worst kind of precedent if you assume that other judges haven't done the same thing.

Surely there are many who don't find many of Scalia's rulings in line with his stated philosophy and there sure are lots of folks who think the "umpire" analogy by Roberts has proven to be as legitimate as a corked bat.

Posted by: seantolsen | July 16, 2009 12:51 PM | Report abuse

Perhaps Professor Seidman of the Georgetown University School of Law is the type of individual the 19 members of the Senate Judiciary Committee warn against when they speak of being an activist Judge, legislating from the bench.

I wonder how he would fare if nominated for a Judge's position?

I suggest that Professor Seidman continue in his current position attempting to "mold" the minds of his students to become scholars on the law.

Not to start an argument here, but there's an old Chinese proverb: "Those that can, do; those that can't, teach." Which are you Professor?


Posted by: helloisanyoneoutthere | July 16, 2009 12:55 PM | Report abuse

I've been reading some interesting articles on judging recently, especially with regard to the "empathy" standard from Obama as compared with Robert's umpire analogy. What does a judge do in the five percent of cases where previous law does not give a clear answer? It seems to me that the judge should ask: If this were clear in the Constitution, or in prevailing law, then what would it say? That would get us away from the "empathy" standard which seems a slippery slope to unblind justice, but would modify Robert's umpire analogy as follows: Five percent of the time you have to call the ball or strike when the baseball is halfway to the plate, based on the first half of its trajectory.

Posted by: hipshot | July 16, 2009 1:01 PM | Report abuse

Mr. Gerson, it is unfortunate what has become of confirmation hearings, but how can you accuse Judge Sotomayor of setting the precedent? How about good ol' "Balls and Strikes" Roberts? Sotomayor is just following the Republican playbook.

You and Professor Seidman can't be that naive? Can you?

Posted by: chipgower | July 16, 2009 1:01 PM | Report abuse

The only possible way to understand Mr. Gerson's comments today is to make the assumption that Gerson slept through the last 15 years, and completely missed every other SCOTUS appointment process. Gerson is shocked---SHOCKED to learn that the Obama operatives have learned from their predecessors. Sotomayor has been at least as forthcoming as any of the Bush appointees. Indeed Mr. Gerson says that Ms. Sotomayor "had to sound at key moments like John Roberts." Does Gerson recognize the incredible irony of this statement?

Posted by: jamesgshannon | July 16, 2009 1:02 PM | Report abuse

Her "wise Latina" comment is disturbing for a supreme court justice because it reveals a stereotypical view of white males which bears little resemblance to reality. She displays a tunnel vision and instead of a richness of experience, a lack thereof.

Posted by: alstl | July 16, 2009 1:03 PM | Report abuse

Boy, terrible copy editing. "Sonya"? "Federal Society"? Nice job, Gerson and WaPo.

Posted by: conorjclarke | July 16, 2009 1:13 PM | Report abuse

It looks to me like she is behaving exactly like John Roberts did in his pre-appointment appearances. If he had said that his bias is toward the rich and powerful (a notion for which there is some empirical evidence) he would not have been confirmed. Gerson apparently applies a double standard here.

It's time the liberal segment of this society learned to play by the rules established by the conservatives in their ascendancy. To be sure, the truth suffers in the process but a cynical approach seems to be the most effective route to success these days. With friends like Professor Seidman, Judge Sotomayor hardly needs any enemies.

Posted by: carolyn4driving1 | July 16, 2009 1:18 PM | Report abuse

Unfortunately, Supreme Court nominees are well-schooled by their "handlers" in the White House to speak in platitudes and with equanimity, and to reveal as little as possible about any held belief that might jeopardize one or more Senatorial confirmation votes. Professor Seidman, as a legal scholar and follower of the Court, should know that. This charade was played out with equal (some might say more) frustration in the recent confirmation hearings for Justices Alito and Roberts.

These proceedings are far more in the nature of political grandstanding by the participating Senators than they are substantive give-and-take designed to produce the reasoned and informed "advice and consent" envisioned by our founding fathers.

At least this time we've had the chance to see that Judge Sotomayor has a sense of humor, an unruffled judicial demeanor, and a healthy dose of New York "street smarts". Those factors, combined with her unquestionable intelligence, diligence and thoroughness, and the substantive evidence of her 17 years of federal court jurisprudence, should be more than enough to establish her suitability for the post to which she has been nominated.

Enough already! Confirm Sonia. Then, if it is the system which is lacking (which it is), criticize the system, not the nominee. And work to fix it.

Posted by: nan_lynn | July 16, 2009 1:21 PM | Report abuse

Moronic crap again Gerson.

You neocons have totally perverted the confirmation process with litmus test ideology questions and you have the nerve to complain that she doesn't fuel the righteous indignation of the extreme right?

The spectacle of right wing, southern republicans accusing her of racism should peg the irony meter. Their inherent and obvious dishonesty should make it clear why she is wisely keeping her cards close to the vest and not casting any pearls before these swine.

If you're going down this road Gerson, you have to also explain the obvious "tell-em-what-they-want-to-hear-despite-my-record" tactics of Roberts. He has proven that he and Scalia are anything but umpires. But when they call 'em the way YOU like 'em they get a pass.

Try thinking and writing honestly instead of continuing to spew the party line.

Posted by: joebanks | July 16, 2009 1:24 PM | Report abuse

Nominees have learned to shield their philosophical underpinning is all this shows. Republicans warble about judicial activism but engage in it far more than they care to admit. Their pied piper and paradigm, Antonin Scalia, is a temperamental over bearing barn burner of conservative activism. The Ricci case proves exactly the opposite of what they want it to prove, and THAT was their "go to" model to discredit her. Moreover, watching the intellectually overmatched and factually challenged Sessions and the unctuous, condescending Graham one was left to wonder how Sotomayor suppressed giggles. This was always going to be much ado about nothing--

Posted by: bklyndan22 | July 16, 2009 1:27 PM | Report abuse

That's what I love about spin doctors like Gerson who seem to think that by saying something, you make it true. They also seem to think that everyone else can be accused of the same sort of thinking.

I think that once we have enough decent Supreme Court Justices, they should find an opportunity to ban lying guttersnipes who will use anyone's words to spin the news their way. Then Gerson would have no choice but to move to a country like, say, Russia - where the Chechnyan leader who has journalists and activist killed can claim to want to track down their killers.

Washington Post: when will you drop this spineless snake from your opinions page? Or, barring that, when will you hire OJ Simpson to write columns on Gerson's off days?

Posted by: vlodko | July 16, 2009 1:28 PM | Report abuse

As Michael Gerson tends to do at some point, his supposedly fresh take on conservatism simply cannot help but impose itself on the context of the matter under review while calling itself objective in an utterly self-serving kind of way. First, like all post-Bork nominees, the language is bland and non-responsive in order to get through the process without gotchas, and this has nothing whatsoever to do with who is in the majority or any self-declared bunk about the so-called ascendancy of conservative thinking. Second, all the counter-factually named "Federal Society" has managed to do, along with other right wing enablers, is to reinforce the need to keep the language neutral because of the political price to be paid, which is not the same thing as saying their position is right or even the dominant legal theory of the day. Third, the conservative activism that Gerson and his ilk so disingenuously advocate while denigrating liberal activism merely shows the hypocrisy behind this kind of thinking.

Posted by: lloydamy | July 16, 2009 1:31 PM | Report abuse

We haven't had honest hearings since Bork. She will join the others as a card-carrying cynical relativist who's self-interest is all important.

Posted by: rusty3 | July 16, 2009 1:31 PM | Report abuse

Man! Look. You say tomayto, I say tomahto. Typically, when I apologize for a mistake, I prefer the "s" word. Someone else may prefer the "r" word. Either way, it qualifies as an 'apology'. .... Let it go.

Posted by: deepthroat21 | July 16, 2009 1:43 PM | Report abuse

As someone has said earlier, these hearings must be the ultimate in irony. Jeff Sessions a person who was seen as too racist by Republican standards to be confirmed at his own hearing is now grilling someone on being a racist.
Sessions is one of the most partisan member of the Senate yet he is trying to find out how impartial a judge Sotomayor will be. This from a guy who said,jokingly said that the Ku Klux Klan was not so bad until he found out that some of them smoked marijuana.[2][4] Sessions also allegedly referred to the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) as "un-American" and "Communist-inspired" because they "forced civil rights down the throats of people." At his confirmation hearings, Sessions said that the groups could be un-American when "they involve themselves in un-American positions" in foreign policy.

Posted by: Ironcomments | July 16, 2009 2:07 PM | Report abuse

Why do they let you continue writing for this paper when you have nothing of importance to say?

Posted by: blund | July 16, 2009 2:21 PM | Report abuse

Is this what passes for cogent analysis at the WaPo these days?

Posted by: reporter1 | July 16, 2009 2:25 PM | Report abuse

Whatever, Gerson. The fact is Sotomayor is an American with a Latina heritage and she is wise indeed after all she graduated with the highest honors from America's most prestigious universities, and she was a prosecutor for a premier city, New York, and she worked for corporate America then served for 17 years in the Federal Bench. Now, with a resume like that, who wouldn't be crowing? But, above of this, Sotomayor is proud to be an American. We shuold be proud too to have produced a judge like her. From very humble beginnings to the highest court, what a country America is.

Posted by: mstratas | July 16, 2009 2:38 PM | Report abuse

Oh please!

This (the confirmation hearing) is all a charade.

The nominee is "coached" by administration handlers; the members of the party out of power preen to their rump consituency; the members of the party in power throw up sophomoric questions for sound bites.

A careful reading of the body of prior judicial rulings tells us what is the philosophical persuasion of the nominee.

A "wise latina" would do well to keep her head down and answer very slowly for the confederency of dunces interrogating her.

Posted by: jgretz6242 | July 16, 2009 2:43 PM | Report abuse

Politicians lie to be elected and judges lie to be confirmed...what's new?

Posted by: wolfcastle | July 16, 2009 2:52 PM | Report abuse

I am also disappointed by Sotameyer's backtracking a bit. But it isn't lying. To me, she is just dropping the tug-o-war rope. The conservatives want this argument because they have convinced there dwindling hard-core followers that liberal judges are activists and conservative judges are just umpires calling it like they see it.

She would rather just stay out of it, especially since her record shows no activism (real or imagined). And judicial activism is just simply the words used when a conservatives don't get the interpretation of the law they want. It's an argument that benefits conservatives because they made up this false dichotomy of interpreting the law and trying to argue against it just makes everyone sound silly. What's that saying about wrestling with a pig?

Posted by: mnander2727 | July 16, 2009 3:17 PM | Report abuse

"Sotomayor’s retreat involved a kind of confession that conservative legal theory is on the ascendant." And who knows, maybe one day Gerson will actually be right about something for a change. A suggestion: Maybe you will want to revisit those comments around the end of Obama's second term, and tell us how "ascendant" conservative legal theory looks by then.

Posted by: gposner | July 16, 2009 3:28 PM | Report abuse

Rhenquist, Thomas, Roberts, and Alito all did the same thing. Sotomayor has no more duty to tell the truth than did these Justices.

That the Federalists are wrong in their legal views is not relevant. This is politics, and the right long ago made truth irrelevant.

Posted by: Garak | July 16, 2009 4:00 PM | Report abuse

Mr. Gerson seems to be upset that Sotomayor's answers were more conservative than the liberal he expected her to be. But he had to write a column anyway.

Posted by: browneri | July 16, 2009 4:04 PM | Report abuse


Gerson puts in some stupid parentheses to

show he dosn't know much about inside secrets of the Federalist society. Whether they have secret signs or handshakes, etc.

Is he, are they 13 years old?

This is he mentaliy of the Bush people.
No wonder this counry is wavering.

Only GOldman Sachs and the like are doing well.

Posted by: whistling | July 16, 2009 4:19 PM | Report abuse

Apparently Gerson failed to watch the confirmation hearings of Roberts and Alito, where they did the exact same thing

Posted by: maurban | July 16, 2009 4:31 PM | Report abuse

Mr. Gerson,

You did not raise any objections to Scalia or Roberts, and I don't recall your stance on Sen. Sessions (who was rejected). Scalia is an activist judge, but one who totes the GOP far-right line, so he's fine. Sessions is a closet Klansman, which cost him his nomination. The notion of a "wise Latina" who is centrist, moderate, and 98% of the time is in the majority opinion rendered by her court, is what terrifies the hard-wing nuts. They are scared of someone who might be fair, balanced, and not cater to partisan ideologies.

Get over it and let go the notion that you and Bush know what was best for this country. The Iraq war was a debacle, costing us an opportunity to catch Bin-Laden, and compromised our nation's morality. The TARP bailout for Wall St. sharks has done nothing to ease credit, stabilize the economy or save jobs. His tax cuts never trickled down to Main St. While Bush took a $500 billion surplus to a $1 trillion deficit, and a national debt from $4.5 to $12 trillion, you applauded, and now are suddently "fiscally conservative," and against any attempts to reform the abuses that cost this nation dearly.

Posted by: tinaandreou | July 16, 2009 4:40 PM | Report abuse

Wouldn't it be refreshing to see a prospective Justice state "Yes, I generally support a woman's right to choose" or "No, I don't think a teacher has a right to bring a gun to shcool"?

....and then get approved anyway?

Dems don't know how to play - all you need is 50 votes plus one.

Posted by: toritto | July 16, 2009 4:43 PM | Report abuse

I hope you're not a licensed lawyer. Sotomayor sailed through the hearings so well that the leading R bullies have telegraphed a quick approval.
What do you have to gain by trashing a justice of our Supreme Court? Preaching to your base probably pays your salary, but please save this non-sensical partisanship for pols, not judges.

Posted by: auntywbush | July 16, 2009 5:26 PM | Report abuse

Perhaps Georgetown law Professor Louis Seidman might want to concern himself with the fairness of the georgetown pension plan and whether it will have enough money to pay its wage workers.

It might be a good place to vent his moral outrage and exquisite sense of justice.

Or He might want to explain the immorality of ponzi schemes such as that perpetrated by Madoff, Sanford, Paulson and Summers et al.

Or perhaps he might want to document for us in what publication he vented his outrage at securitization of college loans and various schemes and the damage they did to higher education in this county.

or perhaps Seidman might just want to keep quiet

and Leave the pontificating to the pope.

Posted by: JohnAdams1 | July 16, 2009 5:38 PM | Report abuse

Wow. Finally a Post piece on the Sotomayor hearings that is real about this candidate. Evasion and self-contradiction do not seem like desirable qualities in a Supreme Court judge.

Posted by: ceannidghe7 | July 16, 2009 5:52 PM | Report abuse

Prof. Seidman should keep his underwear untangled, count to ten and take a deep breath. Of course Sotomayer wasn't saying that judging was that simple. She simply had to dumb down the concept for all the two-neuron conservative white males in our midst who seem terrorized at the prospect of no longer being the sole focus and constituency of the Supreme Court. She's trying to break it to them gently that people other than them have needs, fears, and concerns.

It is a new concept for them, so they need to be treated with compassion and kid gloves during this, their first day away at kindergarden. Sotomayer was just handling them appropriately given that.

Posted by: B2O2 | July 16, 2009 5:57 PM | Report abuse

It is perfectly obvious that every judge brings a personal life history to the bench and to the decisions they render. That reality is an argument in favor of having diverse life experience represented in the judiciary. It is also perfectly obvious that a judge must be aware of her/his own biases and assumptions, and work assiduously to suppress them in their work. Sotomajor has been consistent in articulating both realities, but wingnuts are determined to impute their own meaning into her words. It gets tiresome, but I guess it plays to the base OK.

Posted by: frodot | July 16, 2009 6:06 PM | Report abuse

This has got to be the single dumbest thing I've read.

In the first part, you criticize her for mentioning her life experience, then in the 2nd, quote a guy complaining that she isnt making moral judgements???

Posted by: kreator6996 | July 16, 2009 6:35 PM | Report abuse

What a MO-ron Gerson is.

Hey, Mike. Gawd is after you! Stop those gays, those abortionists -- quick , quick, over here.

How does anybody pay any serious attention to a religionist in the 21st century? Gerson is the Flat Earth Society writ large.

Posted by: mitt1968 | July 16, 2009 7:09 PM | Report abuse

What a cunning little runt Michael Gerson is!

Posted by: mitt1968 | July 16, 2009 7:44 PM | Report abuse

She has only 50 IQ points on the dreadful "Uncle" Thomas, but I still think she ought to be confirmed. An IQ of 70 isn't the worst thing in the world, especially since you have religionists on the panel who still scrape the bottom of the barrel.

Posted by: mitt1968 | July 16, 2009 7:52 PM | Report abuse

Perhaps Mikey "Holier-Than-Thou-Or-Anyone-Else-On-The-Planet" Gerson, Bush's pet liar (aka chief speechwriter) for six long years, could enlighten us as to the meaning of Sarah Palin's retreat?

Got a clue, Mikey?

Or are you still praying for one?

Posted by: WhatHeSaid | July 16, 2009 8:00 PM | Report abuse

An assumption buried in Gerson's logic is that only activist liberals would ever insert their values into the law. It would be a huge coincidence if the "law" always ordered Scalia et al to decide for corporations against the poor, white males against minorities, etc...

Posted by: ilikereason | July 16, 2009 8:06 PM | Report abuse

More trash from a former speechwriter for the Worst President In History, George Bush. Why does Fred Hiatt love failed GOP hacks so much? Why is this clown given a column in the Post and drawing a paycheck, when he'd most certainly be serving fries from a drive-through window if ... oh, never mind.

Posted by: losthorizon10 | July 16, 2009 8:33 PM | Report abuse

Well of course she had to hide her racist views...liberals always see people and situations based on race first and typically think it is ok to discriminate against white males. Sotomayor is no different, but she was not brave enough to stand up for her beliefs. I'm sure once she is on the court (and behind closed doors) she will revert to her true and perverted liberal discrimination.

Posted by: DaMan2 | July 16, 2009 9:45 PM | Report abuse

helloisanyoneoutthere: Your Chinese proverb is as fallacious as can be, good thing you aren't up for a judgeship, I wouldn't want that type of flawed logic to judge a wrestling match!

Posted by: StacyC1 | July 16, 2009 10:31 PM | Report abuse

Either Prof. Seidman has never listened to even one other Senate Judiciary Committee Supreme Court nomination hearing, or he is being highly hyperbolic in his "disgust" at Judge Sotomayor's answers in this one.

Just calm down, Professor, or the next nomination hearing may just stress you out to your grave. We Georgetown alumni were taught in Philosophy classes that reasonable responses were preferable to exaggerated rantings.

Posted by: dlopata | July 16, 2009 10:45 PM | Report abuse

Good Lord, Gerson!

First you want any Obama candidate to conform to the conservative mantra that the Constitution is immutable and that there is no place on the court for empathy or human feelings of any kind. Then you start whining about how she supposedly abandoned liberal judicial philosophy in her answers. Then you came out with this hogwash: "Second, Sotomayor’s retreat involved a kind of confession that conservative legal theory is on the ascendant." There was no such retreat, nor is conservative legal theory ascendant, except in your twisted and perverted mind. On the contrary, Gerson, the conservative ideology is in decline all over the world. The masses are growing restive, and if the world recession turns into a depression, you may want to retreat to your Montana luxury resort compound and wait out the sci-fi senario that may just end up happening, thanks to an uncontrolled increase in population, uncontrolled pollution, chemical and biological pollution affecting human birth rates and increasing unwanted mutations, and the death of billions from famine, plague, and resource wars, all of which is happening thanks to your conservative ideology.

Posted by: Chagasman | July 16, 2009 10:47 PM | Report abuse

I was a student of Professor Seidman's. He helped to pioneer a different course of the study of law at Georgetown from which I benefited. Although it was a few years before my time, and I questioned the fact that I could purchase his verbatim lectures from the printer down the street before he even delivered the lecture.

Nevertheless, I thought his slight mea culpa after the post quoted by Gerson was telling. He stated that the official version of the law is somewhat a lie. I agree. I'm a trial lawyer. While I argue that the finders of fact (in my case the jury) should apply the facts to the law, I also argue the facts to be in my favor. I start this when selecting a jury by conditioning the jury to accept my point of view. In the end, the jury accepts the facts they want to and applies the law to their result. Of course, we also explain the vagueness of the law so as to conform to the facts as we want the jury to believe.

Seidman basically had it right, he just said it less than eloquently. The facts are malleable . . . depending on your point of view.

Posted by: jmoore76 | July 16, 2009 10:59 PM | Report abuse

Well, the testimony of the ideological warrior John Roberts sure proved to be less than forthright ("calling balls and strikes"...yeah, right), as must be the testimony of any nominee who wishes to survive the over-heated political process that judicial confirmation has become. It's simply no longer possible to state your true views or, indeed, to admit to any views at all. Just as in electoral politics, a "gaff" has become defined as saying what you really mean. Unfortunately, it's become almost impossible to be confirmed without coming uncomfortably close to perjury. As with politicians: pay no attention to what they've said; pay attention only to what they've done, how they've voted; how they've ruled.

Posted by: ronricorossi | July 16, 2009 11:04 PM | Report abuse

The hearing could be reduced to one question: are you going to overturn Roe v. Wade? If it's a GOP-majority committee, say YES; if it's DEM, say NO. Confirmation follows. R v W, the center of our judicial universe.

I think the wise Latina is not being candid, but I wouldn't expect her to be. It's not a hearing to find out the truth, just to see if she makes a serious mistake.

Posted by: Matthew_DC | July 16, 2009 11:37 PM | Report abuse

I wonder when hypocrisy can be used as a near 'compliment' when compared to something that *appears* to be a hypocritical statement but is a nasty, cowardly, purposefully contrived lie.

Gerson is not a hypocrite -- though he often appears to be one -- he is simply an evil, party apologist who will say anything he can conjure up to advance the fringe-right agenda.

It is laughable to recall the difference in senatorial self-aggrandizement (and deference to race) when a career bureaucrat with a whole 16 months of experience as a judge -- one Clarence Thomas -- was appointed to the SC by George H.W. Bush.

Gerson was pushing and proselytizing, shilling and shamming with unbridled, rabid vigor to get Clarence Thomas appointed -- and it sure wasn't because of Thomas' race, or even his novice, naive judicial opinions. It was simply because he was G.H.W. Bush's nominee and he was a stated conservative republican.

Oblivious to the fact that Sotomayor is a hundred times more qualified than Clarence Thomas, more even-tempered and fair, more intellectually honest, and more beholden to the constitution and the rule of law rather than 'party affiliation', Gerson will do his best to tear her apart.

This isn't hypocrisy, it is deceitful, do-and-say-anything, fascist-like loyalty to the white right conservative mantra that Gerson worships.

So, as it is blatantly obvious, this and just about anything this man writes is so slanted and so deceitful in its contrivance and use of untruths and convenient, sophomoric one-liners that it is sickening.

It is men like Gerson that are tearing this country apart with their politics of division rather than consensus. That the WaPo can give such cretins a forum for their twisted ideology is profoundly disturbing.

.

Posted by: Frank57 | July 17, 2009 12:11 AM | Report abuse

Louis Seidman fails to realize that Sonia Sotomayor is a Federal Judge. She doesn't have to entertain a class of law students to earn a living. No one who has questioned Sotomayor is nearly as intellegent as she is. She was the Valedictorian of her High School and graduated from Princeton with honors. These wannabes can't understand what's she's talking about. It's as if she was a rocket scientist talking about pyrotechnics. I could see the anxiety in their faces as they tried to understand something they could never.

Posted by: petekaplan2 | July 17, 2009 12:23 AM | Report abuse

The fundamental logical fallacy that Gerson is commiting here is that he's begging the question when he intimates that judicial restraint is a trait of conservative justices. Judicial Restraint and Judicial activism are independent of liberl and conservative labels. conservative justices are just as culpable when it comes to judicial activism as liberal justices. Ironically, the Ricci case that so many are trying to hang their hat on is a great exacmple of conservative judicial activism.

Posted by: VTDuffman | July 17, 2009 8:25 AM | Report abuse

Maybe what Judge Sotomayor's performance means is that Republicans have made the confirmation hearings meaningless by, as usual, demanding fidelity to preposterous orthodoxy. Deviate and face filibuster.

Posted by: Skeptikos | July 17, 2009 9:20 AM | Report abuse

The answer to Sotomayor's flip-flop is simple.

Obama displayed it in his march to the POTUS.

Fake Right.. rule Left.

Such behavior only confirms to me that America is conservative-leaning and liberals must often lie, distort or conceal their real beliefs to get elected or appointed.

Posted by: pvilso24 | July 17, 2009 10:10 AM | Report abuse

There was a time in our history when the selection of a nominee to the Supreme Court was not a public process at all. The public--then, as now--really does not have the time or the intellectual wherewithal to understand arcane Constitutional questions. It is why we have a Republic, a representative democracy, instead of a pure democracy. We elect representatives to act in our stead. W e expect them to do their leagal homework and ensure that the best possible people are selected to serve on the High Court.

The only thing that has changed is television. The reason Judge Sotomayor had to conceal her most devoutly held principles is the public spectacle that television has turned such grave eventsa into. Televison has elevated the worst people in the world to a status that once was reserved for truly deserving people.

The system still works. Judge Sotomayor is truly one of those deserving people. But television and its all consuming obsession with celebrity and entertainment has mad the selection of a Supreme Court nominee a matter for ratings and the making of celebrities out of our representatives.

Blaming Judge Sotomayor for the squalid system you people in the media have created seems a monumental hypocrisy to me.

Posted by: jaxas | July 17, 2009 10:28 AM | Report abuse

Pvilso24, you have a big letdown coming. America is not as conservative as you think. And demographic trends will make it even less so as time marches on. There was a time when it was unthinkable that an African American might ascend to the Presidency.

You and other conservatives are deluding yourself and you are being helped by media polling organizations that do not do enough in depth surveying of Americans to determine what they understand the terms "liberal" and "conservative" to really mean. For example, how do you explain the dichotomy of two-thirds of the American people supporting government involvement in education, the environment, social security, civil rights, public safety, transportation and infrastructure and health care, while at the same time telling pollsters they see themselves as more conservative than liberal?

Clearly, the public does not define these terms as ideological leanings. They seem to be defining themselves as conservative in personal terms but liberal in what the expect of their government.

Posted by: jaxas | July 17, 2009 10:41 AM | Report abuse

The GOP questioners -- notably Sessions -- lectured, cajoled, and condescended (like an old grandpa talking to a 14-yr-old girl) about their demand that Supreme Court judges be "objective" and umpire-like and have no personal opinions. Period. Robotic judges. Computer-programmed decisions. At all times. Period. Done.

"Have you read the Constitution?" asked one of them, sounding exactly like Grandpa asking his granddaughter if she can tell time on a clock, in order to get on curfew. Every woman in America cringed.

Sotomayor knew that these GOP senators had one note to play. She knew exactly what they would say and how they would say it. She'd done her homework.

She also knew that, like little boys having tantrums, they would turn right around (the old 180) and insist that she agree with their (white, male) opinions. Not that she would give their opinions an equal hearing, but that she would agree. ("If I'm pregnant," says Coburn, "and I want an abortion because of a serious debilitating condition, is that okay?" Clearly the answer was supposed to be, "Oh, no, sir.") On abortion. On guns.

These are opinions which boil down to a belief (yes, it's a male perspective) that women are not capable of life-death decisions affecting them personally, but men are.

Women cannot decide if a pregnancy will damage them, even kill them, but men most certainly can be trusted to decide if they are about to be killed (or even threatened), and bang! Blew that dude away! Or that woman and child, if it's war.

Sotomayor played the game better than the Sessions crew, even fooling that sputtering, old whats-his-name from Georgetown Law School, apparently. (I've just seen another version of Hamlet, and Polonius comes to mind.)

Oh, sorry, I forgot The fine men of the GOP are entirely free of bias. Completely objective. Robot-like. Spock, 100% Fully invested in seeking the truth of all positions. . .

Look, women of my generation, including Sotomayor, have been schooled since we were teens that we must bolster the male ego. "Let him talk about himself. Nurture his self-esteem. Don't let him know how smart you are." These are magazine articles, fitted in among articles about keeping ourselves slim.

Sotomayor was better at both understanding the way "the game" is played and better at playing it. Maybe because her years of active listening in courtrooms gave her empathy, patience, tolerance? When you grow up female, Latina, and poor, you have had plenty of time to figure out how the power game is played, and to whose benefit it is played.

She has done her homework. The men -- who thought she would be "easy" to outsmart -- did not do their homework. Were they watching baseball or Limbaugh instead?

Posted by: cturtle1 | July 17, 2009 11:35 AM | Report abuse

Posted by: ceannidghe7
Wow. Finally a Post piece on the Sotomayor hearings that is real about this candidate. Evasion and self-contradiction do not seem like desirable qualities in a Supreme Court judge.

You might want to go back to Alito and Robert's confirmation hearings.

They said much the same thing.

But I guess since they are Republican it is OK for them evade and contradict them selfs.

Posted by: tinkabell1 | July 17, 2009 3:21 PM | Report abuse

The answer to Sotomayor's flip-flop is simple.

Obama displayed it in his march to the POTUS.

Fake Right.. rule Left.

Such behavior only confirms to me that America is conservative-leaning and liberals must often lie, distort or conceal their real beliefs to get elected or appointed.

Posted by: pvilso24

And the Republican party never does that do they? The are all honorable truthful
white guys!

You may want to go back and review Alito and Roberts confirmations.

You will be shocked!

Posted by: tinkabell1 | July 17, 2009 3:37 PM | Report abuse

Michael, I hope you enjoy her swearing in. Good luck with the hispanic vote in the future. F'ing Idiots.

Posted by: danw1 | July 17, 2009 4:05 PM | Report abuse

Sonya isn't in retreat. All her confirmation hearing shows is that right wing fantasies were as false and full of straw as they are. She also has to keep her mouth shut about things or she won't get confirmed.

You guys are every bit as good at "Borking" people as Democrats do, but with more "hit" and less accuracy, because you live in a fantasy world where authority and what you want to see trumps what is true and what actually is. Hence you treat myth as if it actually happened, while denying reality -- as you did with this hit piece and previous ones.

And hence the only activist Judges in the country are on the right. For example the Supreme Court invented laws in order to rule for those white fire-fighters who had benefited from a discriminatory test until the test was ruled invalid. That is why the decision was 5-4. Those clowns are legislating from the events and even staging coups (as they did in 2000) by fiat.

In Europe even the most "liberal" democrat seems a flaming rightie. Even their most pernicious politicians wouldn't dare question universal health care, or get involved in the kind of stupidities you do regularly. Sonya will make a good Judge. Maybe even a great one.

However, the worst thing is the sheer hypocrisy of folks like you, who want to eat with silver spoons and pass in and out of the Government/Think Tank/Conglomerate revolving door while railing against "Gubbornment". We get to hear evidence that nearly every senator and house member who had been opining about what a travesty Bill Clinton's infidelities were, suddenly excused from their own infidelities on the grounds that if King David could do it -- so can they.

They don't have to resign because they are "sorry" and have too much power. We are finding out that a mafioso "Family" dominates our right wing leadership, that Rush Limbaugh might be our new Mussolini and that therefore Oxycontin is just fine if you are worth a million a year but bad if some fool on the street uses it. And meanwhile Goldman Sachs is suing a former employee because he might use one of their tools to once again destabilize our economy so someone can pocket a quick buck. Rule by these Family member Mafioso gives the Mob a bad name.

Don't worry they'll spare a dime or two to buy one of our politicians and employ you Mr. Gerson to speak for him. Are you writing for Sara now?

Posted by: chris_holte | July 18, 2009 2:39 AM | Report abuse

Tripe.

Posted by: mrh2 | July 18, 2009 4:01 AM | Report abuse

So conservatives like Gerson charecterize Sotomayor's statements from the past by taking isolated phrases out of context, giving them a sinister spin. Then when Sotomayor has an opportunity to respond to these idiotic charges (no, she didn't mean that judges pass laws establishing policy, yes, she did mean that legal rulings are used by legislators to set policy, and yes, she did mean that judicial rulings are used as legal precedents all the time, of course they are) Gerson claims that she's changed her stripes.

I can understand the Georgetown professor's frustration, since Sotomayor has to walk a tightrope when being questioned by right wing Republicans looking for more sound bites to take out of context and milk, so she stresses over and over how "the rule of law is all we apply".

However nothing she said contradicts her earlier statements, of course empathy and personal history come to bear in judgements, judges are humans, we don't let robots make our legal judgments.

The real story here is how the Republican party has now alienated what few remaining Spanish speaking voters they might have had, by declaring a war on empathy and being openly racist against hispanics (the Ricky Ricardo impersonation was a great touch). It's going to be fun watching them get twenty percent of the vote in the next few elections, which is what it will take before they wake up and purge themselves of the old, racist, white, right wing, extremist men who dominate the party now. Cheered on of course by people like Michael Gerson who think that their fantasies about how Sotomayor has "changed" is the real story here.

Posted by: BillEPilgrim | July 18, 2009 5:18 AM | Report abuse

My God, you are a shsllow, silly guy. Another one og Wapo's political shills.

Posted by: anders1 | July 18, 2009 1:16 PM | Report abuse

The idea that either activism or adherence to constitutional precedence is a trait of any one political party is absurd. Conservatives are just as much activists for their favorite causes as liberals are for their causes. The best on both sides try to apply precedents and constitutional law to their decisions. The conservatives attempt to say otherwise was tantamount to claiming that one party stands for Mom and apple pie while the other is against it. Both sides try to adhere to constitutional precedent, to have ever thought otherwise was always an absurd falacy.

Posted by: ccalvert | July 20, 2009 12:48 AM | Report abuse


I wonder if Gerson watched the confirmation hearings of John Roberts. Roberts might just as well have well have been a mannequin. Sotomayor at least responded where she could, Roberts was given a total pass, even by the Dems, on his views. I don't think Roberts said anything more significant than "I like pie."

Posted by: pclement1 | July 20, 2009 3:33 AM | Report abuse

I always love it when Roberts' "balls and strikes" analogy comes up. As someone who umpired for a few years, and as any baseball fan knows, no two umpire's strike zones are the same. And, on the professional level, none seem to follow the strike zone as defined in the baseball rule book.

Umpires call them as they see them, but that doesn't mean that evey umpire sees it the same way. Was it fair or foul? Did the runner leave the base early? And, the hardest for me, was it a balk?

So why would SCJs be expected to see everything the same way? Isn't that why we have 9 of them?

Posted by: baltimoremom | July 20, 2009 9:12 AM | Report abuse

As I recall the old adage from law school.

Those that can, do.

Those that can't teach.

Those that can't teach, teach law.

Posted by: wtjoyce1956 | July 20, 2009 9:32 AM | Report abuse

And Mr. Gerson some of us think you wrong. Actually no one knows-if we did we would be divine. However, we are "mere mortals" who like Sotomayor has faults and is willing to acknowledge it.

It would be wonderful if those officials in government would be willing to admit they do not follow all the rules but, try to be fair regardless of their lack of empathy.

I am sure in the past and somewhat even now many have said things they regret but, many have also not apologized for their statements, remarks or whatever. Some of us are still waiting for that one but, then, there is always the statement of "when hell freezes over." I give Sotomayor one thing she stood well and took it. I personally would not. I would tell them all where "to go on a slow boat."

So, I guess on his subject we disagree but, the Constitution lets me have that right and freedom of speech and press. Hallelujah! Amen!

And one other thing: She spoke on an academic level in debate; discussion and in theory. Nothing is proven to be totally solid in its conclusions. The Constitution is not even conclusive is it? Especially when he orginal document was stolen and certain amendments take out so, who can truthfully say we even know truth according to the real law. I am sure Sessions in all his brillance can be pure in his opinions according to the law when we are not completely sure of even that.

Posted by: Scar1 | July 20, 2009 10:39 AM | Report abuse

In the past all white majority males have ruled government and said and done things they believed to be just and fair. However, no apologies; no empathy; no justice and no rule of law prevented them to be what they are or say what they wanted or intended to say. So, now that President Obama and Sotomayor and other minorities attempt to go to higher levels-"there is a problem and we are upset". Some of us have been upset so, let's just say Sotomayor and Barack Obama said what we have always wanted to say but in a dignified and intelligent manner. Let's say they are smarter. Good, Bien and Hallelujah!!! Kiss off!!!

Posted by: Scar1 | July 20, 2009 10:51 AM | Report abuse

Wow... what a waste of space that was.

Posted by: CardFan | July 20, 2009 4:24 PM | Report abuse

What she has been saying for years, and what her statements of last week said, does not represent the truth. Many of her latest statements are 180 degree different. Kind of like President Obama's life before and after his nomination. <><

Posted by: kdfallon1 | July 20, 2009 5:59 PM | Report abuse

Does Gerson really believe that "applying the law to the facts" is conservative and so-called "activism" is by definition liberal?

Interestingly, even the "liberal" law professor cited seems to have accepted this frame to some extent. In actuality, nothing Sotomayor said is inconsistent with liberal jurisprudence. There is no politically neutral way to interpret the Constitution. The idea that there is such an interpretation is a political/legal fiction. Some might even argue that it is a "noble lie." The only real questions about judicial restraint or activism are how deferential will a justice be toward the policy makers perogatives and the applicable judicial precedents.

After more than two centuries of judicial interpretation of the Constitution, this type of restraint can serve both liberal and conservative political purposes, depending on the case at hand.

Liberal law professors' dissappointment was probably due to the fact that Sotomayor did not use her testimony as an opportunity to disabuse the Republican senators of this fiction. She could have debated the superiority of a liberal jurisprudence to a conservative one without betraying any of the actual canons of judicial ethics, but chose to keep her power dry and ignore the bating of the Republicans. Even if one acknowledges the political prudence of such an approach, it is still reasonable to be dissappoiinted in her choice not to expose the flawed premises being advanced by the Republican senators and by columnists such as Gerson here.

Posted by: jeroldduquetteorg | July 20, 2009 6:45 PM | Report abuse

Wow Gerson tells us the meaning of something, as if he knows anything Ilove it. Perhaps next WAPO can have Stevie Wonder tell us what it looks like to him or Gomer Pyle on quantum machanics, in the niether world of pundits Gerson is the Gomer of Pyles.

Posted by: jpenergy | July 20, 2009 10:18 PM | Report abuse

I was flabbergasted when the “wise Latina” stated she did not know if she believed in self defense. How could that possibly be an answer? I do believe that to be a sidestep provided by her handlers because it was never answered.

Posted by: longbow65 | July 21, 2009 7:37 PM | Report abuse

It started with Bork and the Democrats who did not confirm him. Had Bork followed a similar strategy, he would be on the court now. After Bork, we will never again have a nominee who will offer anything but what will get them nominated.

Posted by: TominOhio | July 21, 2009 10:02 PM | Report abuse

Michael Gerson, your illusions about liberals are just that: *your* illusions...

Posted by: thosem1 | July 22, 2009 8:31 AM | Report abuse

The conservative justices are very "activist" judges. They just say that they aren't.

Now the liberal justices are doing the same thing. So, what's new?

I would ask the "conservative" judges who say that all they are to do is "interpret" the Constitution, and not make new law to answer this question.

The Constitution says that the USA cannot go to war without the Congress filing a Declaration of War. The Congress did NOT file a Declaration of War in our war in Iraq. So, then, why isn't our involvement in Iraq not UNCONSTITUTIONAL? Or, to put it another way. How the hell is the War in Iraq Constitutional?

An "activist" conservative judge could say:

1. The war in Iraq is not a war. That's an activisit position. Of course, it's a war.

2. That it's not necessary to file a Declaration of War, but they won't give the reasons.

So, you see, folks, we are now run by an activist conservative Supreme Court that will not follow the Constitution.

I'd like to see some conservatives dance around this one and tell the rest of the class why the USA did not need to file a Declaration of War as required by the Constitution. They won't. They are gutless.

Posted by: santafe2 | July 22, 2009 9:27 AM | Report abuse

I find it hard to believe that their are comments attributing "litmus" test questions as originating with neo-cons. Obviously, those commenting on this are either too young or ill-read, to remember litmus tests, particularly Roe v. Wade, originated with liberal Dems and continue to this day.

Posted by: tsteay | July 22, 2009 10:41 AM | Report abuse

The question I would have asked her is "what, in your opinion, does liberty mean"?

The area she admitted not being familiar with is the most important, terrorism. I would vote against her on that issue alone.

Posted by: chrisc23 | July 23, 2009 12:26 AM | Report abuse

Who knows, she is going to be vested, our next Supreme Court Judge. I hope what she said was heartfelt, that she will base her decisions on the rule of law and not personal bias, wheter liberal or conservative. I would like to look back in a few years and say, "Well done". She has my prayers, I can't imagine the responsibility she is assuming. I wish her and our country well.

Posted by: georgeerrn | July 23, 2009 12:32 AM | Report abuse

Dear Professor Seidman:

The last time I saw "Cognitive Dissonance" was in the Scientific American in the 1960's. Then after one of our Southern Troglodyte Legislators uses it, suddenly I hear it used by the very most cogitative consonant of all stripes.

I have an appointment with my opthamologist shortly, but I promise to look at Judicial Empathy and at who should be ashamed of themselves for their silence during the destruction of the rational Supreme Court as soon as I get back.

Your Pal,
Monte Haun
mchaun@hotmail.com

Posted by: mchaun | July 23, 2009 9:53 AM | Report abuse

Hi Monte,
What you wrote above is exactly the reason why I could not understand how the judicial committee was so willing to confirm SS.
BO's comment towards the Cambridge Police Department further made me realize that one's own life experiences do affect the decision and one cannot be objective in such instances. I believe that the last exchange in his speech spelled political suicide for BO.
It also made me recall the lengthy speech he gave after the Reverend Wright incident. Rather than denouncing his statement "God Damn America" he decided to lecture this nation about race relations in this country. I was impressed with the speech and hoped that when BO gets to office, he can help dispel such stereotypes and help to bring this nation together. Instead, this bright, well educated, experienced and very eloquent politican gave a very impassioned, personal and judgmental response after admitting he does not know all the facts.
I just want to ask Pro.Gates a question: if his house was being burglarized by a black man but the police did not follow procedure for fear of being charged with racial profiling, I'm sure he (Gates) would be the first man to scream discrimination and racism!
I do not think this issue or topic should go away nor should it be swept under the rug as I'm sure BO would like. It really leads me to question the real motive behind the president's agenda. Does he have the interests of ALL Americans or is there a hidden agenda to promote and aide a small demographic representation?
I urge the journalists to keep this story going and to discuss the implications of "impartiality" of people who have such personal agendas to fulfil. We are about to place a person in the highest seat of law in this country for LIFE! Are we sure that SS could remain objective and impartial despite the life experiences she has endured? Are you willing to gamble and hope that we can take her word that she will uphold the constitution of the United States?
Su from Fort Lee, NJ

Posted by: american17 | July 23, 2009 8:54 PM | Report abuse

I agree that is a terrible precedent, but I disagree that it started with Sonia Sotomayor. The last two appointees although clearly Federalist in their past briefings and rulings, backtracked from their more fringe beliefs during confirmation. It isn't the individual nominee at this point, it is the process.

Posted by: makikkik | July 23, 2009 9:25 PM | Report abuse

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