"The hope that the next justice will be a check on the power of corporations is entirely appropriate."

Writes Jeffrey Rosen:

After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....

Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.

Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....

The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").

That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.

Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. 

Great! A bloodbath. Sounds exciting. I'll watch.

"I basically thought of it as a blog entry."

Blaming blogging for what wasn't even blogging.

4 reasons I'm glad Obama nominated Sonia Sotomayor.

1. Finally, a Supreme Court Justice with a [last] name longer than 3 syllables. (Thanks to downtownlad for noting the possible distinction and my son John Althouse Cohen for confirming it.)

2. Finally, a Hispanic Supreme Court Justice... and we won't have to keep talking about how some day there ought to be a Hispanic Supreme Court Justice.

3. We'll get back to the historical high water mark of women on the Court. Wow! To hit 2 again!

4. Jeffrey Rosen gets his comeuppance.

CORRECTION: James Taranto on #1:

Blogress Ann Althouse claims that Sotomayor will be the first justice with a four-syllable last name and credits her son for confirming this. But it isn't true. John Althouse Cohen apparently is too young to remember Justice Willis Van Devanter.

I'll bet John thought his middle name was Van.

Jeffrey Rosen loves Diane Wood.

After what he said about Sotomayer, this is ardent admiration:

After nearly 14 years on the appellate court, she has proved to be such an impressive match for her conservative colleagues that it appears that, of all the current Supreme Court candidates, her temperament and moderate, incremental liberalism most resemble Ginsburg's. "She is very careful, she is respectful of precedent, she is a craftsperson, and she is fairly incremental in her approach," says Geoffrey Stone of the University of Chicago and the author of a book on the suppression of speech during war. "I think she does believe that the role of judges, in part, is to ensure that the oppressed and the disenfranchised and dissenters get a fair shake in the political system, which would be a significant part of the moderate liberal element of Diane. But she's certainly not in any way result-oriented."

Don't worry, conservatives!

Jeffrey Rosen defends his attack on Sonia Sotomayor.

As you may recall, on Monday, Rosen quoted unnamed former clerks to make what the headline called "The Case Against Sotomayor." The "case" seemed to be mainly that she wasn't smart enough. Rosen got slammed. Finally, today, he responds:

I've just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.

Everyone knows there's no way you can check the internet in London, and anyway, why would you even think to look when, after all, you only just threw a huge stinkbomb?

Many people have mischaracterized my argument, and I can understand why. The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver...

Blame the headline writers. Yes, they do have a tendency to state bluntly the things you swathed in verbiage.

Readers have asked for more information about my sources....

Rosen assures us his sources are trustworthy and must remain anonymous.

I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them....

Yeah, the evaluations are bad — not on the point that she's not smart enough, but that she lacks "judicial temperament."

Some readers have also questioned my confession at the end of the piece that I hadn't read enough of her opinions to make a fully confident judgment.

Now, he's read some more opinions. He stands by his original opinion, which, he notes, accords with that Almanac of the Federal Judiciary.

Rosen concludes:

[I wanted] to encourage the White House to weigh considerations of temperament against the many other factors they'll be considering.

Ah, he's shifted to the temperament argument. He really didn't defend the "not smart enough" position.

For the next Supreme Court seat, the president needs to be sure that the nominee's temperament and abilities are not merely impressive but absolutely stellar. She--and the next justice should indeed be a she--must be ready to challenge the conservatives and persuade her fellow liberals from the very beginning.

Must be a woman. (I agree.) Must be a woman who can interact well with the Justices already on the Court. Fine... boilerplate. But read as a whole, this new Rosen piece — put bluntly, in the manner of a headline writer — is saying that Sonia Sotomayor would be a terrible choice for the Supreme Court.

Is Letterman mocking Sonia Sotomayor or mocking the mocking of Sotomayor?

If he's not mocking the mocking, he looks anti-Hispanic, and I'm pretty sure his show is careful about avoiding the appearance of bigotry.

Brian Beutler opines:

The campaign against Second-Circuit Court of Appeals Judge (and potential SCOTUS nominee) Sonia Sotomayor began in earnest when nameless former clerks on that court told The New Republic's legal correspondent Jeffrey Rosen that the Hispanic judge (and one-time George H.W Bush appointee) is too temperamental--and not intelligent enough--to serve on the Court....

The charges have been challenged loudly--almost immediately after the article came out, other people familiar with her work came forward to call the piece baseless. But once the cat was out of the bag, there was no stuffing it back in....

[T]he coup de grâce may have come last night when Sotomayor bashing traveled outside the beltway, and on to the Late Show...

Beutler notes the speculation that Rosen was trying to help his brother-in-law — go to the link for the details — and procures a denial from Rosen.

Here I am on May 4th wondering whether Rosen had ulterior motives:



I anticipate a careful response from Rosen (whose reputation is now on the line).

Meantime, while it counts, Sotomayor's been wounded. Her stock on Intrade has spiked and plunged.