New GOP counsel disputed many anti-Sotomayor talking points

Orin Kerr: Sotomayor is "like a liberal mirror image of Samuel Alito" and "a pretty conservative pick".

By Glenn Greenwald

Published June 6, 2009 12:07PM (EDT)

(updated below)

George Washington University Law Professor and Volokh Conspiracy blogger Orin Kerr announced yesterday that he has accepted a position as Special Counsel to GOP Sen. John Cornyn for the Sotomayor nomination.   On several occasions, however, Kerr has rather expressly disputed some of the key GOP talking points used against Sotomayor.

On the day Obama announced Sotomayor's selection, this is what Kerr wrote:

[A]t this point I would think Sotomayor is very likely to be confirmed. I don't know a ton about Sotomayor, but her resume hints at someone who is sort of like a liberal mirror image of Samuel Alito: the humble kid who goes to Princeton and Yale Law, becomes a prosecutor, and then gets appointed at a young age to the federal bench and puts in 15 years as a respected (if not particularly high profile) federal judge.

In some ways, that makes Sotomayor a pretty conservative pick: Her resume is the kind of very accomplished resume that Supreme Court picks have tended to have in the last two decades or so. Given the make-up of the Senate, and the absence of surprise, I would imagine at this point that Sotomayor is very likely to be confirmed.

Thereafter, he denied the importance of one of the principal talking points against Sotomayor -- the claim that she uses "empathy" in lieu of the law:

I don't think the meaning of "empathy" is really such a vital issue. Like the John Roberts baseball analogy, it seems like a phrase that captures the public attention for its (superficial) simplicity rather than the depth of its insight.

Relatedly, Kerr undermined this same attack on Sotomayor by pointing out that it was right-wing icon Robert Bork who wrote the following paragraph, in his book The Tempting of America:

The judge's proper task is not mechanical. "History," Cardinal Newman reminded us, "is not a creed or a catechism, it gives lessons rather than rules."  No body of doctrine is born fully developed. That is as true of constitutional law as it is of theology. The provisions of the Constitution state profound but simple and general ideas.  The law laid down in those provisions gradually gains body, substance, doctrines, and distinctions as judges, equipped at first with only those ideas, are forced to confront new situations and changing circumstances.

Kerr also strongly disputed an accusation from his fellow blogger that "Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms."

It's difficult to imagine how the GOP can effectively press its attacks on Sotomayor that she is some sort of unqualified affirmative action mediocrity who disregards the law when John Cornyn's own Special Counsel for Supreme Court Nominations called her "a liberal mirror image of Samuel Alito"; said she "has put in 15 years as a respected federal judge"; described her selection as "a pretty conservative pick"; dismissed the "empathy" attack as a simplistic superficiality; and pointed out that Robert Bork viewed the law and a judge's role rather similarly to the caricature being peddled about Sotomayor.


UPDATE:  In response to a commenter who objected to the celebration by liberals of Sotomayor's pick on the ground that she'd be the first Latina on the Court, Kerr wrote:

In 2005, Republican President George W. Bush selected Harriet Myers for the Supreme Court largely because he wanted to pick a woman, even though Miers had no experience as a judge and no real experience in areas relevant to the Supreme Court. The GOP White House then tried to sell the Miers nomination on the ground that she was the first woman to achieve what she did, even going so far as to suggest that people who opposed her were being sexist and opposing Miers because of her gender.

Given that recent history, isn't it sort of odd to suggest that the emphasis on race and gender in an internet comment thread concerning the next female nominee somehow echoes "the vile racist and sexist past" of the Democratic Party? Isn't it significantly less offensive than what the most recent Republican President did just 4 years ago?

And in the comment discussion that ensued after he posted the Bork quote, Kerr made a point that is painfully obvious though has been falsely denied by the Right and the media ever since John Roberts inflicted his inane and misleading "balls and strikes" metaphor on our political culture (emphasis in original):

I thought the Bork comment was interesting because it suggests something I have found to be accurate and is sometimes overlooked -- that no one believes in a mechanical application of the law.

Democrats might consider calling as the first witness in defense of Sotomayor's nomination John Cornyn's new Special Counsel for Supreme Court Nominations.

Glenn Greenwald

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