Invisible Reform

Ohio’s Republican Senate candidate, Rob Portman, goes extremely off-message talking about the GOP’s health care reform plan:

“I will tell you, I don’t think there is a Republican alternative at this point,” he said. He said he reached that conclusion after talking to Senate leaders and lawmakers about the GOP’s position. “There isn’t one,” he said.

You heard it straight from the elephant’s mouth: the Democrats have a health care reform plan and the Republicans don’t. So not only is the GOP the Party of No, they’re also the Party of No Ideas.

But hey, they have talking points. Because there’s the modern GOP for you, putting hollow messaging over real reform.

No wonder these guys are in the minority.


White Flags As Far As The Eye Can See

It looks like that, in the wake of Judge Sotomayor’s accomplished academic and judicial records, her abundance of experience, moderate stances and bipartisan history, the GOP is giving up the fight against her nomination to the Supreme Court:

Top Senate Republican strategists tell POLITICO that, barring unknown facts about Judge Sonia Sotomayor, the GOP plans no scorched-earth opposition to her confirmation as a Supreme Court justice.

More than 24 hours after the White House unveiling, no senator has come out in opposition to Sotomayor’s confirmation.

“The sentiment is overwhelming that the Senate should do due diligence but should not make a mountain out of a molehill,” said a top Senate Republican aide. “If there’s no ‘there’ there, we shouldn’t try to create one.”


However, senators on both sides said they are confident that unless the process takes some startling turn, Sotomayor will be confirmed in plenty of time for the court’s opening on the fabled first Monday in October.


Republicans’ only hope of derailing Sotomayor would be a filibuster — a move countless Republicans have opposed in the context of judicial nominees. And even if they took that route, they are virtually certain to lose badly.

Republicans have 40 votes in the Senate — and it’s hard to imagine someone like Sen. Olympia Snowe (R-Maine) or anyone from a state with big Hispanic population blocking the judge.

[Emphasis mine]

The GOP would have very little power to block Sotomayor even if they had some kind of solid ground upon which to oppose her.

If out-of-context quotes are garbage made-up statistics about ‘reversal rates’ are the most conservatives can lob against a 17-year veteran of the federal bench, then Judge Sotomayor has nothing to worry about.

Republicans In Bad Faith

It’s been less than 48 hours since President Barack Obama nominated Judge Sonia Sotomayor to the Supreme Court.

Sotomayor graduated summa cum laude from Princeton and got her J.D. from Yale Law School, where she was editor of the Yale Law Journal.

Judge Sotomayor has been a federal judge for nearly 17 years–she has more federal judicial service under her belt than any other sitting Supreme Court Justice had when they were nominated.

But here we are, less than 2 days from her nomination, and conservatives have smeared Sotomayor as “incompetent”, “unqualified”, “racist”, “sexist”, “bigoted”, a “judicial activist”, etc.

Republicans are ignoring Judge Sotomayor’s long, accomplished academic career and longer, more accomplished judicial career in order to launch superfluous political smears based on nothing substantive.

The GOP isn’t even saying they’re going to reserve their judgment until Judge Sotomayor testifies before the Senate Judiciary Committee. They have had nearly no time to review her record as a federal judge, yet they have already declared her unfit to serve on the Supreme Court.

Where is all this unwarranted, unprecedented hostility coming from? This exchange between MSNBC’s David Shuster and Judicial Watch’s Tom Fitton explains it all:

David Shuster: “What evidence do you have that she would put her feelings and politics above the rule of law?”

Tom Fitton: “Because President Obama chose her.”

Judge Sotomayor is absolutely, undeniably qualified to serve on the Supreme Court, period.  I doubt conservatives will find anything substantive in her judicial record–if they even get around to looking at it–that will undermine that.

(I mean, it’s not like Judge Sotomayor voted to uphold police strip-searches of children, unlike Judges Roberts and Alito did in Hedgepeth v. Washington Metropolitan Area Transit Authority and Doe v. Groody, respectively)

Republicans are acting in bad faith, period. They would have tried equally hard to torpedo anyone President Obama appointed to the Supreme Court, no matter what their record, accomplishments, or judicial philosophy were.

And, in all likelihood, if the GOP goes to the bat to oppose Sonia Sotomayor, they will fail. In the past 30 years, only 3 Supreme Court nominees have failed to make it to the high court, and only one of those was rejected; the other two withdrew their names from consideration.

Plus, the GOP is extraordinarily weakened–they have only 40 Senators, meaning that they would have to maintain total party unity to successfully filibuster Judge Sotomayor, an extraordinarily unlikely prospect.  And with only 7 seats on the Judiciary Committee–as opposed to the Democrats’ 12–it’s extremely unlikely they’ll be able to block her in committee, either.

So, with all probability, despite the GOP’s sound and fury, Judge Sonia Sotomayor will be seated on the Supreme Court.  And if the GOP mounts an all-out defense, history will remember that the Republican Party attempted to filibuster the first Hispanic woman to be appointed to the United States Supreme Court–a woman who, in the end, won’t be much more liberal than the man she is to replace.

Debunking Right-Wing Talking Points On Judge Sotomayor

Let’s debunk some right-wing talking points on Judge Sonia Sotomayor, shall we?

Judge Sotomayor said that the appeals courts make policy! That proves she’s an activist judge!

While it’s true that Judge Sotomayor said:

All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made

She did follow that up with:

I’m not promoting it. I’m not advocating it.

In addition:

She’s not wrong,” said Jeffrey Segal, a professor of law at Stony Brook University. “Of course they make policy… You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy.”


Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. “She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals… It is thoroughly uncontroversial to anyone other than a determined demagogue.”

[Emphasis mine]

Sotomayor said that Latina judges are better than white male judges! That’s racist!

It’s true that Judge Sotomayor said:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Actually, the full sentence is:

Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Looks like we’re missing some context here; keep in mind that Judge Sotomayor was discussing race and sex discrimination cases when she made these remarks:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

[Emphasis mine]

Sounds a lot less controversial when you put everything in context, huh?

Many of Sotomayor’s rulings have been overturned upon appeal, which proves that she’s an inferior judge.

Actually, Judge Sotomayor’s record on reversals is far above average:

Over each of the last several terms, the [Supreme Court] has reversed 75% of the cases that have come before it.


Sotomayor’s decisions were upheld far more frequently than the norm. Apparently, out of the 380-odd opinions she penned while on the Second Circuit, the Supreme Court granted cert on just six. And of those six, Sotomayor was reversed on only three. That’s a .500 batting average

[Emphasis mine]

So while the Supreme Court reverses 75% of the rulings they review, they have reversed only 50% of Sotomayor’s rulings they reviewed.

BREAKING: Obama Picks Sotomayor For SCOTUS (UPDATED X6)

President Barack Obama has nominated Judge Sonia Sotomayor, of the Second Circuit Court of Appeals, to replace David Souter as an Associate Justice of the Supreme Court.

A few things to keep in mind:

  • Judge Sotomayor has a strong history of bipartisan support–she was nominated to her current position by President Bill Clinton; before that, she was nominated to the U.S. District Court for the Southern District of New York by President George H. W. Bush.
  • This makes Sonia Sotomayor more bipartisan than John Roberts, who was nominated to the D.C. Circuit court by George W. Bush, who then nominated him to the Supreme Court.
  • This also makes Judge Sotomayor more bipartisan than Samuel Alito, who was nominated for the Third Circuit Court of Appeals by President George H. W. Bush and nominated to the Supreme Court by President George W. Bush.
  • When George W. Bush was making court appointments, conservatives claimed that the Senate’s constitutional duty to provide “advice and consent” on judicial nominees meant that they could only oppose a court nominee if he/she were unqualified, not due to ideological differences. Conservatives also claimed that filibustering judicial nominees was unconstitutional, demanding a definitive “up or down” vote on all nominees. When the possibility of a Democratic filibuster arose, Republicans threatened to eliminate the filibuster entirely for this very reason.
  • No matter who President Obama nominated–whether he chose a judge with broad bipartisan support like Sotomayor or someone more ideological–conservatives were going to call that nominee a “liberal” and an “activist judge.” Conservatives aren’t interested in determining whether or not Judge Sotomayor is fit to serve (since she undeniably is); they’re interested in smearing her for no other reason than the fact that she was appointed by a Democratic President.
  • UPDATE: Another important point: Judge Sotomayor has been a member of the federal judiciary longer than any other sitting Supreme Court Justice had at the time of their nomination.

UPDATE: The only solid criticism conservatives have been able to make about Sotomayor was her ruling that the City of New Haven could throw out its promotional test for firefighters and start over with a new test, since the city believed the test had a “disparate impact” on minority firefighters and they feared that those minority firefighters could sue.

That doesn’t exactly seem like a slam-dunk disqualifier to me or doctrinaire liberal ruling to me. Frankly, if that’s the most Republicans can criticize Sotomayor on then I don’t think she or President Obama have much to worry about.

UPDATE II: Here’s more proof that Judge Sotomayor, contrary to the right’s talking points, is not some kind of hard-line far left doctrinaire liberal:

  • In Center for Reproductive Law and Policy v. Bush, Judge Sotomayor voted to uphold the Bush administration Mexico City policy, which requires foreign organizations receiving U.S. funds to “neither perform nor actively promote abortion as a method of family planning in other nations,” as constitutional.
  • Judge Sotomayor dissented in Pappas v. Giuliani, claiming that the NYPD could not terminate an employee from his desk job for sending racist materials through the mail, since the First Amendment protects speech by the employee “away from the office, on [his] own time,” even if that speech was “offensive, hateful, and insulting.”

In other words, contrary to what the GOP would have you believe, Judge Sotomayor seems like a fair-minded legal scholar with significant respect for the Constitution and the rule of law.

UPDATE III: And let’s keep in mind some of John Roberts’ and Samuel Alito’s more controversial rulings before they were appointed to the Supreme Court:

  • In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts ruled that it was constitutional for police to strip-search a 12-year-old girl for violating the Washington Metro’s zero-tolerance policy toward eating food in subway stations.
  • In Doe v. Groody, Alito claimed that it was constitutional for police to strip-search a mother and her 10-year-old daughter while they were carrying out a search warrant for the house they lived in.
  • In Chadwick v. Janecka, Alito held that that there was “no federal constitutional bar” to the “indefinite confinement” of a man imprisoned for civil contempt because he claimed he could not pay his $2.5 million debt to his wife.

I doubt you could nominate someone to the Supreme Court who doesn’t have some kind of controversial opinion or ruling in their past.

Yet, Congress has confirmed nominees with some objectionable rulings/opinions to the Supreme Court. Just because Republicans can find one or two of Sotomayor’s opinions they disagree with doesn’t–and shouldn’t–disqualify her from serving on the Supreme Court.

UPDATE IV: The following eight Republican Senators voted to confirm Sotomayor for the Second Circuit Court of Appeals:

Bennett (Utah)
Specter (has since switched to the Democrats)

In other words, the GOP won’t be able to defeat Sotomayor’s nomination without several instances of stunning legislative hypocrisy.

UPDATE V: MSNBC just talked to Senator Orrin Hatch, one of the eight Republicans who voted to confirm Judge Sotomayor in 1998. He brought up two points that I think need to be dealt with:

Sonia Sotomayor was only nominated to the federal bench by George H. W. Bush so that Senate Democrats would confirm one of Bush’s more conservative nominees.

Regardless, Sonia Sotomayor was nominated to the federal bench by a Republican President. Every judicial nomination is affected politics and political calculations, but George H. W. Bush still thought Sotomayor was accomplished, qualified, and had the appropriate temperament and respect for the rule of law to serve as a federal judge.

While some Republican Senators voted to confirm Judge Sotomayor to the Second District Court of Appeals, that court is far less important than the Supreme Court; thus, Sotomayor now should be held to different standards.

Actually, I’d argue that federal courts of appeal are extraordinarily important considering that the Supreme Court only accepts about 1% of the cases that are brought before it. In other words, federal courts of appeal are far more often the last resort for major constitutional cases than the Supreme Court.

I’m not claiming that every federal appeals court judge is automatically qualified to be a Supreme Court justice, but it’s pretty appalling for Republicans to claim they only voted to confirm Sonia Sotomayor because the Second Circuit Court of Appeal wasn’t worth their opposition.

UPDATE VI: And the RNC boneheadedly sent their Sotomayor talking points to the press, so feel free to take a gander at their playbook for sinking the Sotomayor nomination.

Closing Guantanamo (UPDATED X2)

Once again, the GOP is engaging in blatant dishonesty–this time about the President’s plan to close the Guantanamo Bay detention center and relocate its inmates.

The Republicans pretend like the Obama administration is proposing to just dump these guys off on a corner in Duluth or something is some of the most idiotic, willfully dishonest garbage I’ve ever heard. We Democrats are proposing putting these guys in supermax prisons, which are the most secure prisons in the world designed to house the worst of the worst; anyone who talks about releasing Guantanamo detainees “on American soil” or “into our communities” is misleading the public.

One of Dick Cheney’s main points today was that Guantanamo detainees are nothing like anyone we’ve ever dealt with before–but that’s just not true. America has been imprisoning terrorists in supermax prisons for decades: domestic terrorists like Eric Rudolph, Timothy McVeigh, Terry Nichols and Ted Kaczynski have all been kept in supermax.

We’ve also been holding Islamic jihadists in supermax prisons–Ramzi Yousef and Omar Abdel-Ragman, the men behind the 1993 WTC bombing, are in supermax prisons. So is 9-11 plotter Zacarias Moussaoui and Abdul Hakim Murad, an Al-Qaeda terrorist who planned to shoot 12 airlines out of the sky within a 48-hour period. And in the decades those men have been in supermax prisons, none of them have escaped, organized another terrorist attack, etc.

Republicans also pretend like we’ve never released anyone from Guantanamo before. In fact, before leaving office the Bush administration released nearly 500 Guantanamo detainees. In other words, George W. Bush released more people from Guantanamo than are currently being kept there. So why is moving detainees out of Guantanamo suddenly so controversial?

And, arguably, the Bush administration was more reckless in removing detainees from Guantanamo than the Obama administration will be–take this article from mid-January:

Six detainees were released from the U.S. military’s detention center at Guantanamo Bay, Cuba, the Department of Defense said Saturday.

Four of the men were transferred to Iraq, one to Algeria and one to Afghanistan, a military spokesman said.

[Emphasis mine]

So George W. Bush sent Guantanamo detainees back to the countries they came from, while Barack Obama wants to try them in American courts and put them in American prisons, which are the most secure in the world. You tell me–would you rather Guantanamo detainees be sent back to their home countries and have God knows what happen to them, or would you rather see them put on trial and incarcerated somewhere they will never leave?

The last stupid talking point I’ve heard is that, if you put Guantanamo detainees in American prisons, they’ll “radicalize” the prison population. But we’re talking about putting them in supermax prisons, which are nothing like the prisons you see on TV: supermax prisoners have very little contact with one another. They’re kept in tiny cells for 23 hours a day and are given only one hour of exercise in small, solitary exercise rooms.

Plus, jihadists are already kept in a separate area of the prison for just that reason:

A correctional officer at ADX told me that inmates are placed on the same range based on their compatibility. Another clue as to why jihadists are housed together comes from Bureau of Prisons director Harley Lappin’s 2003 testimony to the Senate Judiciary Committee. He said that his department’s strategy was to ensure that “inmates with terrorist ties do not have the opportunity to radicalize or recruit other inmates.” They are kept at ADX because, he noted, it’s “our most secure facility.”

[Emphasis mine]

In other words, nothing has changed–the Republicans are still as misleading and dishonest as ever. Once again, Republicans are playing political games with America’s national security and–to use their phrasing–undermining the President during wartime. Nobody who was part of (or even supported) the Bush administration can be trusted on this issue–shuttering Guantanamo while preserving America’s national security would be a huge blow to Bushism as a national security strategy, which is why Republicans are fighting so hard to make sure that Guantanamo stays open. It’s classic, craven, conservative CYA.

UPDATE: As for the “nobody will take Guantanamo detainees” argument–well, like I said, the supermax facility in Florence, Colorado, already houses Islamic terrorists.

Plus, there’s the town of Hardin, Montana:

Economic development officials in Hardin are looking at the soon-to-close detention facility in Guantanamo Bay as a possible fix for the jail sitting empty in Hardin.


Meanwhile, a 460-bed detention facility sits empty in Hardin. Built by Two Rivers Authority, the city’s economic development arm, the facility was meant to bring economic development to Hardin by creating more than 100 high-paying jobs.

While leaders continue to look for contracts to open the jail, which was completed in 2007, people in Hardin have approached Two Rivers executive director Greg Smith saying they have the answer: Get the contract to hold those prisoners from Guantanamo.


The Hardin City Council voted Tuesday to support Two Rivers’ efforts.

The council resolution states that the city “fully supports the efforts of the Two Rivers Authority to contact State and Federal officials for the purpose of inquiring into the possibility of housing Guantanamo detainees at the Two Rivers Authority in Hardin, Montana, and to determine whether the Two Rivers Detention Center could provide a safe and secure environment for housing said detainees.”

UPDATE II: As most of you have probably heard, the FBI recently broke up a terror plot being assembled by a group of homegrown Muslim converts.

The FBI went undercover in order to bust the plot, successfully foiling it before any damage could be done or any harm brought upon American citizens.

The alleged perpetrators have been arrested and will be tried in American courts; if guilty, they will be put in high-security American jails.

Most importantly, nobody had to be tortured or waterboarded for this plot to be prevented.  Event though this plot involved an impending terrorist attack on American soil, it was the FBI, not the CIA or the Pentagon or anyone like that, who stepped in and kept America safe.

Even though these men are jihadists who wish to wage war against the United States, none of them will be thrown in Guantanamo Bay. They are going to be tried under American law and, when convicted, placed in America’s most secure jails; personally, I hope they end up in Florence’s supermax facility.

What this shows us is that both torture and Guantanamo Bay are unnecessary. We are fully capable of investigating and foiling terrorist attacks and incarcerating those responsible without having to break our laws or sacrifice our values.  Whenever the GOP drags out their talking points about torture or Guantanamo, keep this story in mind.

GOP “Class” & “Dignity”

I almost missed this little gem from RNC Chair Michael Steele’s speech yesterday:

While promising a more aggressive approach, Steele also insisted that Republicans will show “class” in countering Obama.

“We are going to take this president on with dignity. This will be a very sharp and marked contrast to the shabby and classless way that the Democrats and the far left spoke of President Bush.”

Ladies and gentlemen, courtesy of last month’s tax day tea parties, here’s the GOP’s “class” and “dignity”:










I eagerly await either Michael Steele’s explanation of how this constitutes class and dignity, or his full-throated denunciation of the tea party protests in the name of class and dignity.

Of course, in the interest of living, I won’t hold my breath.