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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Liberals Lash Out Against Sotomayor Testimony
July 15, 2009 11:13 AM
As the hearings get underway for a second day of questioning, it appears Republicans aren’t the only ones who think Sotomayor has been less than candid in her testimony.
The Center for Reproductive Rights, a leading abortion rights group, this morning is calling for more questions on abortion, with President Nancy Northup complaining that Sotomayor “said little about her own understanding of the issues underlying Roe and the Court’s subsequent decisions on abortion rights.”
And the Constitutional Accountability Center's Doug Kendall noted that, despite all her speeches to the contrary, “empathy, perspective and understanding pretty much went out the window” in her testimony.
Kendall called that a “smart political strategy” that “comports well with her judicial record.” But at least one prominent liberal academic strongly disagrees.
In an online debate last night, liberal Georgetown Law Professor Mike Seidman declared himself “completely disgusted” by her testimony.
Seidman, who clerked for liberal icon Thurgood Marshall, wrote:
“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?”
“Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.”
As one of my colleagues pointed out, Seidman clearly isn’t gunning for the Sotomayor holiday card this year -- unlike so many legal experts and analysts who have so eagerly defended her performance as a nominee (knowing, incidentally, they will soon be appearing before her as a justice.)
Yesterday, it was striking to see Sotomayor dance around issues, decline to defend liberal philosophy and go on to specifically reject the so-called legal approach of the man who nominated her, Barack Obama.
It prompted Lindsey Graham to complain that she was sounding a lot like John Roberts -- and she did on some answers -- and ask, “Who are we getting here?”
Sotomayor said, for example, that a right to privacy was settled, according to Supreme Court precedent. That wasn’t a whole lot different than what Roberts said in his hearing: A right to privacy is settled, under the principles of stare decisis.
In other words, a right to privacy is settled unless the Supreme Court says it’s not. Not exactly what Nancy Northup wants to hear from a liberal nominee.
But it was the sweeping philosophical questions that were most surprising, as this exchange with Graham. He asks about a classic liberal/conservative philosophical divide.
GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?
SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendments. It is a process -- an amendment process that is set forth in the document. It doesn't live other than to be timeless by the expression of what it said. What changes is society. What changes is what facts a judge may get.
That’s nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn’t be that difficult to knock it out of the park.
Obviously, Sotomayor can't answer questions about how she would rule on issues that might come before her, so it's a different point than sounding like Roberts on those answers. But it's her responses on theory, the sweeping questions of philosophy that are frustrating liberals like Seidman.
“One of the things she said that was striking yesterday was 'judges should never decide cases out of fear.’ But her testimony came out of fear,” Seidman told me this morning. “It doesn’t speak well of her.”
And with a decisive majority in the Senate, “it doesn’t take a lot of courage,” Seidman said. “It takes only a little.”
Seidman shares Obama’s views that judges naturally bring to bear a set of presupposed moral views when they’re deciding hard cases. But Sotomayor explicitly disavowed that in an exchange with Jon Kyl:
KYL: Let me ask you about what the President said. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart.
Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?
SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the President does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws.
The White House would say Sotomayor isn’t an ideologue, that you won’t get philosophy or theory from her.
But Seidman said Sotomayor’s testimony “is not without cost,” because “she knows that her description of what judges do has no contact with reality.”
July 15, 2009 | Permalink | User Comments (9)
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I disagree with the comment about Judge Sotomayor's response to the "living constitution" question. The statement makes perfect sense, and she did hit it out of the park. She just didn't hit it in the direction many expected. The answer responds directly to the question, and it is a clear, unequivocal repudiation of the "living Constitution" nonsense. It appears that Judge Sotomayor recognizes a truth that has escaped many judges and nearly all law professors.
Posted by: Kent Scheidegger | Jul 16, 2009 11:56:44 AM
What a relief! I am so glad that I am not the only liberal who is firmly opposed to Judge Sotomayor. I didn't have to watch the charade in Senate to know that she was not the type of justice I was hoping this President would appoint. The court is tilted so far to the right because, for the last 40 years, every Republican President (except Ford) has tried his best to appoint right wing extremists to the court while every Democratic President except Carter who unfortunately did not have the opportunity to make any appointments) have nominated centrists.
When Roberts and Alito danced around questions, we knew darn well that it was because they had been instructed to hide their right wing extremist views. Like Clarence Thomas said he did not have any preconceived notions about the subject of abortion. Right.)
Conversely, this nominee appears to be refraining from giving any definitive answers because he's afraid of ruining her chances to be confirmed. WHY she is afraid, however, is a mystery.
President Obama had a chance to start moving the court back toward the center by appointing a strident liberal. Instead, he went for the 2012 Hispanic vote. Of course, appointing a Hispanic to the court was a salutary goal. But appointing a true liberal is far more important at this particular time in the court's history.
I have heard Judge Sotomayor described as a 'moderate to conservative," "tough former prosecutor."
She is not what this court so desperately needs.
Posted by: Jeff Friedman | Jul 16, 2009 6:24:41 PM
Anyone reading this thread should be aware that Kent Scheidegger is the head of a right wing advocacy group whose primary objective is to seek harsher sentences, expansion of the death penalty, and other laws and court decisions that strip away individual rights and make it easier to convict the criminally accused and imprison them for monstrously long periods of time
I can well understand his support of Judge Sotomayor. If I were a right wing extremist, I would be ecstatic over President Obama's choice.
Instead of being confrontational with Senators by nominating doctrinaire extremists on his side of the aisle ala George W. Bush, President Obama opted for his usual conciliatory approach by selecting, at best, a centrist; more probably a moderate conservative.
She is not what this far right wing court needs. But I'm sure that the Pacific Legal Foundation (I believe that's the name of Scheideggger's outfit) will be uncorking the champagne when she is confirmed.
Posted by: Jeff Friedman | Jul 16, 2009 6:38:13 PM
Jeff Friedman’s ad hominem attack on me and my organization is false or misleading in nearly every particular. With apologies to readers for drifting further off the topic, it requires a response.
It is not true that I support Judge Sotomayor’s nomination. Neither I nor my organization have taken a position for or against. As readers of my blog know, I have criticized both supporters and opponents where I thought they were off-base. (It’s a target-rich environment.) My comment in this thread simply disagreed with one criticism I thought was unwarranted.
Calling my group “right wing” is misleading, implying that our positions are based in conservative ideology or consistently hew to the conservative party line. Not true. Supporting the cause of victims of crime and the law-abiding public usually does ally us with conservatives against liberals (a sad comment on the state of contemporary American liberalism) but not always. Our defense of the constitutionality of hate crime laws in Wisconsin v. Mitchell, for example, stirred some ire on the political right.
Neither harsher sentences nor expansion of the death penalty is a primary objective of my organization. For the most part, we simply seek to enforce existing law. On the death penalty, we do favor removing some nonsensical limitations, such as the “triggerman” rule in some states that punishes the leader of a murder conspiracy more lightly than the follower, but we have also proposed narrowing of overbroad laws. It’s been a long time since we advocated any legislation increasing noncapital sentences, and we have supported some reductions, such as the ill-considered federal crack/powder ratio.
I have never advocated "stripping away" any individual rights that are actually in the Constitution.
I am not and never have been affiliated with the Pacific Legal Foundation.
We will not be uncorking any champagne at the Criminal Justice Legal Foundation when Judge Sotomayor is confirmed. We are somewhat relieved that it appears that President Obama did not appoint a “doctrinaire extremist,” to use Friedman’s term. The country is fortunate that none of the recent Presidents have made such an appointment.
Posted by: Kent Scheidegger | Jul 17, 2009 10:53:00 AM
Jeff Friedman works for a left-wing, radical gay group.
I hope ABC will not prevent this truth from being posted as they allowed Jeff's childish rant against Kent to be posted.
Liberals like Jeff Friedman seem to strike out against any patriotic American. What does that say about him and his gay group.
Posted by: liberal hater | Jul 17, 2009 11:31:14 PM
We need a judge who will uphold and strengthen Roe Vs Wade and not seek to undermine it. I only hope Sotomayor is that person.
Posted by: Tensai | Jul 18, 2009 3:34:23 PM
Judicial candidates are like a box of chocolates, you dont know what you have until you bite into it.
guys who complain because are "digusted"
with a judges statements should get off their tenured cant do so i'll teach behind and apply for a Judgeship and see how far they get.
Posted by: forrest gump | Jul 21, 2009 10:35:06 AM
You so call Liberals, I am a Christian, I don't believe in abortions. The only way abortions will stop if you so call Liberals would evangelize and come out of that pretend mode. What a person’s personal feelings are does not disqualify them for a position. I’m so tired of hearing Liberal, left wing, conservative etc. These are terms to try and keep thing separate
Posted by: De De | Aug 6, 2009 11:21:14 PM
One of many interesting quotes from Mr. Scheidegger's post above:
"Neither harsher sentences nor expansion of the death penalty is a primary objective of my organization.
So expansion of the death penalty is not a "primary objective" of Mr. Scheidegger's organization? Hmmm. I didn't know that. Then how does he explain this description of his group on ap.org from 5/29/09:
"The Puerto Rican defense fund's death penalty stance should be looked at in the confirmation hearing, said Kent Scheidegger, legal director of the PRO-DEATH PENALTY Criminal Justice Legal Foundation."
Okay, maybe ap made a mistake, and all the other news services that refer to the euphemistically named "Criminal Justice Legal Foundation" as a "pro death penalty" group just picked up the same error from the ap site.
But then what about the next phrase in Mr. Scheidegger's post: "For the most part, we simply seek to enforce existing law. On the death penalty, we do favor removing some nonsensical limitations...."
"Nonsensical limitations"? Wonder what he means by that? Oh, maybe this quote from the TRANSCRIPT of the 2/23/06 Melissa Block Radio Program will enlighten us:
"Mr. KENT SCHEIDEGGER (Lawyer, Criminal Justice Legal Foundation): I don't think a murderer has a right to a painless death."
Oh, THAT nonsensical limitation?? The limitation that, when the state kills, it is not permitted to use methods that create excruciating pain. Got it. What civilized government in the new millenium should be constrained by such a restrictive rule that it cannot inflict unbearable pain upon its murderers?
Yes, Mr. Scheidegger's group is just an unbiased entity whose goal is to preserve the integrity of the criminal justice system and objectively represent the interests of crime victims. Right.
And this is without searching Mr. Scheidegger's name in Lexis-Nexis for his numerous amicus briefs that uniformly support the enhancement of criminal punishments, expansion of the death penalty, and the reduction of procedural limitations on prosecutors' ability to convict citizens, whether they are guilty or not, etc., etc., etc.
How about that fellow in Texas who was executed for setting an arson fire that killed his three children and has now been proved to have been innocent?
That's the annoying aspect about the administration of the death penalty that throws a monkey wrench into the blood thirsty calls for expanded executions by people such as Mr. Scheidegger.
What can they say about executing the innocent? Will they ignore the trifling detail that, when you approve of executions, innocent individuals will inevitably be killed before their innocence can be demonstrated? Will they claim that the evidence that proved this gentleman in Texas to be innocent was fabricated or otherwise unreliable? Or will they come out and admit what they really think, which is:
"We are so anxious for the death penalty to be implemented quickly and in large numbers that we are willing to accept the occasional execution of an innocent person if that is what is necessary to maintain a functioning capital system."
Posted by: Jeff Friedman | Sep 2, 2009 5:58:44 PM
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