“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”

So the Post then goes on to estimate the votes of the other two judges on the panel, and in doing so does something I regard as unconscionable:

Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law. “Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,” said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.

This guy is openly speculating that judges will base their decisions not on the law or the arguments, but on their race. What sort of third world crapistan does this Hellman chump think we live in? [The sort where the president calls on his preferred ethnic groups to show racial solidarity against his enemies? --Ed. Yes, I guess that would be the sort.] If I thought that any judge would base a decision on his personal identity rather than the law, I’d call for his immediate impeachment, not make glib comments to newspapers where I used the trademark phrase of the Liberal Douche, “so-called conservative.”

Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

Huh. Well, if it’s a fact, I guess it must be true.

I cannot think of a finer example of why social policy should not be made by judges. Quite a few people for quite some time have been debating the future effects of changing the definition of marriage. There are significant divisions within the country regarding what people believe will occur if same-sex marriage gets recognized. At the end of the day, though, everyone’s conclusions are largely speculative, with one side generally concluding that allowing new marriages won’t alter old marriages, and the other side saying that weakening an already tenuous connection between marriage and child-rearing will result in fewer stable child-rearing couples. There are valid reasons to believe each side.

But then some monarch-wannabe in a robe hears a few days of staged testimony and concludes that one side of that argument is a proven fact. Tens of millions of voters across dozens of states have weighed in here, but King Vaughn I decides that one side of a speculative debate is a proven fact, so everybody just go home and hush up about the whole thing. Because he said so.

Their argument is that because the Chairman of the Joint Chiefs of Staff and the Secretary of Defense have said that there is no need for DADT, therefore a court would have to find that there is no rational basis for the law and strike down the law as unconstitutional.

Let me rephrase that argument: Because two high-ranking presidential appointees don’t think there’s need for a duly-enacted law (i.e. an act of the legislature), the judicial branch should strike it down. This is a complete separation of powers clusterf**k.

Obviously the opinions of the Secretary of Defense and Chairman of the Joint Chiefs of Staff are pretty important here. Congress would be foolish not to ask them their opinion when it is performing its Constitutional duty of “regulat[ing] the land and naval forces.” But it is clear that, Constitutionally speaking, presidential appointees are irrelevant here. The Secretary of Defense’s view on DADT is no more binding than is his view on the Voting Rights Act, the national gas tax, or the existence of Martians, and Congress, seeing as it is independent from the executive, should be under no obligation to follow his suggestions.

Personally, I couldn’t care less about DADT – if I were to draw a picture of my opinions regarding DADT, I would draw a vast, featureless ocean of apathy extending to the horizon in all directions. What I do care about is judicial activism. It is, to my mind, preposterous to suggest that the judiciary should strike down an act of the legislature because of the opinion of some executive appointees. The executive and judicial branches should not try to use each other as sticks to beat down the legislative.

Of course, what would make this approach particularly galling is that there is absolutely no need for it. We have a president who won a large electoral victory campaigning, at least in part, on repealing DADT. The president’s party, even after Scott Brown’s win, has the largest Congressional majorities in 30 years. The Secretary of Defense and Chairman of the Joint Chiefs of Staff – Republican appointees both – have said there is no need for DADT. Don’t look to the courts to end DADT, just pass an effing law!

I’m always curious, after reading an op-ed that says not one vaguely fresh thing, and doesn’t even manage to say stale things with charm, why the author bothered. Mr. Boies does not need the money, and he cannot possibly think that this op-ed will change one person’s mind. He doesn’t really need the publicity, as his objective is to change the American Constitution through the courts rather than through the people. Perhaps he’s trying to increase the chance that Obama will nominate Ted Olson to the next open SCOTUS seat? Perhaps he really is so vain as to simply enjoy seeing his name in press? Or maybe he just gets his kicks by calling his countrymen bigots? Who knows.

So thanks for the heads up Dave. I’ll keep an eye out for whatever activist court they stumble in to in their attempt to undemocratically remake American law to their own liking. It must be fantastic to know that you’re so much smarter than the American people.

And any comparison to the attacks on Anita Hill are inapt. Hill leveled personal charges against Clarence Thomas that were outside his duties as a judge. It was a she-said, he-said, and obviously in a situation like that, the characters of the individuals involved are important for gauging the truthfulness of the accusations.

But Ricci’s entire experience with Sottomayor has been in the courtroom. He busted his butt, he did well on his test, but then he was denied justice so he appealed. And when he appealed, instead of finding an appeals court panel that was open-minded and willing to apply the law, he found a couple of ideologues, one of whom was Sonia Sottomayor, who saw in his case not a man fighting for justice, but an opportunity to turn their policy preferences into binding precedent.

Ricci’s character has nothing to do with that story. Even evil men – and I’ve no reason to believe that Ricci is an evil man – should be able to go to our courts and receive a fair application of the law. The only relevant issue is Sottomayor’s scandalously injudicious handling of the case. Attempts to make this about anything in Ricci’s past reveal nothing besides the weakness of the Sottomayor nomination. The only people who can defend her are some people who say – because they know, because there’s never any doubt about how Sottomayor will decide a case – that she’ll vote their way.

Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his resume, his conduct during the hearings, and a conversation I had with him yesterday afternoon. There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view.

Snip

I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The bottom line is this: I will be voting against John Roberts’ nomination. . . .

In other words Barry has no problem not confirming a person he admits is completely qualified to sit on the bench, simply because he doesn’t have warm fuzzy fealings for every hard case that comes across his bench.

Now that the shoe is on the other foot, however, Barry has decided that any criticisms of his nominee are “nonsense“. Nevermind that 3 of 5 decisions written by her and reviewed by the Supreme Court were overturned (60%!) Nevermind that she ascribes to a judicial philosophy best described as oligarchic:

No! The Enlightened One, has given us his choice. Who are we to question it? All this criticism is “nonsense”. Don’t you get it? She feels our pain!

Senator Obama: He’s qualified but conservative. Nay

President Obama: She’s unqualified but compassionate and liberal. Yay

Good job, Barry.

I think that when she’s appearing before the Senate committee, in her confirmation process, I think all this nonsense that is being spewed out will be revealed for what it is

Considering that he nominated someone who “hopes” that “Latina women” make better judges than “white males,” I’m a little curious about what he considers “nonsense.” Because what she said struck me as, plainly, nonsense. For him to call criticism of her “nonsense” makes me wonder whether he agrees with what she said.

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 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 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.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

What on earth does she mean by that sentence? 1. Why is there a presumption that “a white male” has less “rich” experiences than a “Latina woman”? 2. Even if she believed it were true that “Latina women” made better judges than “white males” (and should we be elevating people who say such things?), why would she “hope” it were true? I sincerely hope this gets explained during the confirmation hearing, and that it was nothing more than an inappropriate joke.

That hope aside, even though in the speech she makes a couple of statements along the lines of trying not to let her identity affect her judging, the speech as a whole gives the impression that she revels in how her identity shapes her judgement. Like a puppy rolling around in the grass. I think this nomination is a bad regression in the course of American race relations. I hope Justice Sottomayor is a little less obsessed with herself and her identity than is Judge Sottomayor.

American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”

If I recollect my histories right, there was a particular reason American judges relied on “decisions of other courts” in the early 19th century. Namely, we were a new country whose legal system was almost entirely adapted from an old country’s legal system. Indeed, the fact that this is completely different from the sort of reliance on foreign law that Ginsburg advocates can be seen in the fact that Justices Scalia and Thomas and Chief Justice Roberts feel no qualms about referring to pre-independence British law to interpret early American law, but heavily criticize Ginsburg’s use of modern foreign law. And indeed they should; two hundred years of American legal tradition, laid on top of several hundred years of British legal tradition, is an adequate source from which to draw interpretive insight into American law.

But I think elsewhere in the story we understand why she wants to use foreign law:

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

How are American citizens aided by having our Supreme Court quoted in foreign cases? Are Canadians freer and more prosperous because of how widely respected their Supreme Court is? Of course not! The only people who benefit from that sort of international cite swapping are the judges themselves. I bet it’d make Ginsburg feel quite good about herself if one of her masterpieces was quoted in other countries. As an American citizen, though, I can’t remotely see how it helps us for our out-of-touch legal elites to be highly regarded by out-of-touch legal elites around the world. Is that what the Founders intended by creating an independent judiciary?

If not having our Supreme Court quoted in other countries is the price we have to pay to have judges who remain true to the American legal tradition and do not wish to impose on us the thoughts of those around the world with a lot less experience and success in self-government, then that’s a bargain I’d gladly strike.