Honesty is the Best Policy

Given that a majority of Americans profess to support more-conservative public policies, leftists and liberals tend to obscure their beliefs until in positions of power. Ex: Rahm Emmanuel recruiting all sorts of Blue Dogs to run in conservative congressional districts in 2006 and 2008; candidate Obama mostly sounding much like a conservative would while on the campaign trail (though you knew in your heart of hearts not to believe him); and even Judge Sotomayor’s sudden (professed) conversion to originalism before the Judiciary Committee this week. Of course, the Democratic Congress has ruled like any run-of-the-mill leftwing party in Europe; the president has tried to force through every leftist wish list from the last 30 years; and you know that Sotomayor is still the same person who thinks that she is inherently wiser than any ordinary white guy.

That’s why it’s refreshing, in a bizarre way, when leftists are caught espousing their true beliefs, as candidate Obama was in his exchange with Joe the Plumber back in the fall. Which brings us to the real topic of this post:

Last week, Justice Ruth Bader Ginsburg stated,

Frankly I had thought that at the time [Roe v. Wade] was decided there was concern about population growth and particularly growth in populations that we don’t want to have too many of.

As Jonah Goldberg stated today, it is unclear whether Ginsburg herself agrees that certain populations of Americans should be aborted, or whether she was offering the view of the authors and supporters of the original Roe decision.

Some abortion supporters are more candid in their view that certain populations should be “weeded out,” and the abortion lobby is the direct descendent of the early 20th century “progressive” eugenics movement. These abortion forebears, of course, are also the intellectual forebears of Justice Ginsburg’s legal philosophy. Read Liberal Fascism for an in-depth study of these issues.

One would hope that Justice Ginsburg, one of the most powerful women in the world, would abhorr such a statement, but given her position on abortion in general, and especially partial-birth abortion, that hope may be too generous.

The Making of a (Soto)mayor

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.

So said Georgetown law professor Mike Seidman (linked here at the Volokh Conspiracy) when referring to Supreme Court nominee Sonia Sotomayor’s startling [expected?] remake as an originalist, conservative, judicial minimalist.

Seidman is right to be concerned about the judge’s testimony yesterday and today (albeit for the wrong reasons). Seidman was upset, of course, that Sotomayor’s handlers in the Obama Administration felt it necessary for her to not only tone down her rhetoric, but to dispatch of almost 20 years worth of legal opinions and legal writings and speeches. Still, accusing someone of perjury is a serious charge.

Seidman continues “Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I’m willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake.”

As Jim Geraghty said on National Review Online today,

If you knew absolutely nothing about Sonia Sotomayor before Tuesday’s confirmation hearing and judged her entirely on her answers, you could easily come to the conclusion that she had been nominated by Pres. George W. Bush and was likely to sail through confirmation with the strong support of conservatives in the legal community…But most likely, her rhetoric suggests a concession on the part of the Obama administration that the attitudes exhibited in her previous statements and speeches just won’t sell.

No conservative, of course, should believe that the nominee has completely changed her judicial philosophy since she was nominated for the Supreme Court, but it’s encouraging to know that her views and the views of Seidman and his ilk, are far outside the mainstream (although they are mainstream among legal academics).

James Copland of the Manhattan Institute nonetheless believes the theater playing out this week before the Judiciary Committee is good for the future of legal politics, stating “Sotomayor embraced legal formalism and rejected legal realism, critical race theory, and the host of other academic deconstructionist fashions of the past eighty-odd years.” He continues by arguing that any future nominee will be held to the Sototmayor Standard: someone who professes to be as leftwing as any potential Obama nominee actually is will seem even more outside of the mainstream when compared to this week’s Sotomayor.

If only Justice Sotomayor would actually decide cases according to the judicial philosopy she claims this week.

“Catholic” Sotomayor’s Confirmation

Sotomayor is on the path to judicial confirmation. And barring any serious red flags, she will be confirmed. Scalia, of course, predicted this. Then again, most political pundits would have guessed the same. Female. Hispanic. Protestant – scratch that – Catholic. With a Democrat in the Oval Office, the addition of one more label trumps them all: liberal.

Her opening statement, I felt, was quite disingenuous. Her judicial philosophy: “fidelity to law.” The goal: “uphold[] the Constitution as a Justice on the Supreme Court.” Contrast this with her statement at Duke’s law school where the stated that appellate courts are where policy is made. Apparently, the distinction between applying the law and making the law is lost on Sotomayor. The Supreme Court is the final court where the impact – and consequences – of decisions reverberate through numerous generations.

Unfortunately for conservatives, there is little to halt the confirmation. Churchill remarked that “history is written by the victors”; this confirmation elucidates this truism quite well. Republicans failed to find the Achilles heel of a liberal justice. Granted, Sotomayor’s “wise Latina” comment provided fodder for a decent firefight; but without a spark, the fire fails.

Perhaps that spark could have been Ricci v. DeStefano, but outrage at Sotomayor’s decision is also seemingly feigned. I believe Sotomayor is an activist judge (see here), but I wouldn’t use DeStefano as the lightening rod to mount opposition against her. After all, four Supreme Court justices agreed with Sotomayor’s ruling. The case could have very well come out the opposite way had the Court’s composition been reversed.

This is not “que sera, sera”; I am not so disengaged to believe that. I recognize though that while Sotomayor’s confirmation is virtually inevitable, this is not the be-all-and-end-all. Frustrating yes, but remember, the Court’s makeup still has not changed.

Dead Tree Watch

Lets all give the New York Times Co. a round of applause for this great idea, charging readers monthly fees to access online content (and in the midst of an economic downturn no less.) That’s sure to help the Times flagging readership numbers…

If you’ll remember, the NYT famously tried this with their opinion columnists a few years back, and they were forced to pull the plug when no one bit. With print newspaper readership cratering, this is exactly the wrong tact for the Times, or any other newspaper, to be taking. What the future of the print media is is anyone’s guess – will it be scaled down dailes? Transformed bi-weeklies? Or will print media be discontinued completely?

What does seem certain is that consumers will be looking more and more to web-based media for their news. How traditionally print mediums can adapt to this format, while competing with already established web-based news sources like Politico and Huffington Post, will determine the fate of the industry.