Manhattan Institute pundit vouches for Sotomayor's position on appeals courts

MANHATTAN INSTITUTE CONSULTANT VOUCHES FOR CONTEXT IN SOTOMAYOR'S STATEMENT ON PBS NEWS HOUR, May 26, 2009

Perhaps the leading talking point that the right wing pundits are using against Judge Sonia Sotomayor, is the charge that her statement on federal appeals courts and policy. The right, whom we can suspect will include Sean Hannity, Rush Limbaugh and Fox News in general, have been calling attention to a YouTube video in which Judge Sotomayor, at an academic conference, says that appeals courts are where "policy is made."

Yet, James Copland of the conservative, economic libertarian-minded New York City-based think tank, the Manhattan Institute, demonstrated intellectual integrity in properly putting the appeal court role in perspective.
From PBS News Hour, May 26, 2009:

JAMES COPLAND: Well, I'm largely satisfied with the answer on the sort of the Second Circuit or the Circuit Courts make policy answer. I think it was a bit of a misstatement, but I do think that it's, in fact, the case that the law of the land is largely determined by the appellate courts.

The Supreme Court takes a very small number of cases, and the Circuit Courts actually sort of set the law out there that's followed by all the trial court judges in the country. So I don't find that particularly objectionable.

Another point that Copland made, as well as the readily-posed to strike conservative opinion molders on cable TV and talk radio is the charge that President Barack Obama nominated her for justice, on the basis of her gender and her ethnicity.

Copland said that this nomination was "demographic selection." But Judge Sotomayor has a stellar resume. She had high honors in college and in law school. While studying at Yale Law School she was the editor of the Yale Law Journal.
In addition to serving in federal court she has recently also served as a part-time law lecturer and Columbia Law School since 1999. She has also performed similar law instruction work at New York University Law School.

Think of the numerous white male nominees that have successfully made their way into the Supreme Court. --nominees that often had less stellar credentials than Sotomayor. Where was the outcry when the Court was entirely white male (save for Marshall, O'Connor or Thomas)? When we have a top notch nominee, why not have a nominee whose selection is a corrective measure, diluting the dominance of males? Women are half of society; so shouldn't it be fitting that the Court have women as at least two of its nine members? Latinos are the second largest minority. Where is the outrage in choosing a highly qualified judge that happens to be a Latina?

Justices Scalia and Alito have Italian-American heritage and are Roman Catholic in their religious orientation. Thus they come from two groups that are heavily sought after group by the two political parties. If people are going to have outrage over Sotomayor and her Latina background, they are being disingenuous if they do not express the same outrage in Republican presidents' selecting two Italian-American Catholics for justice.

An urgent call to friends to the left of us: consider a McCain set of appointments to the Supreme Court or the federal courts

We have been hearing how this is the most important election, and so on. Well, we also heard that in the last two. We need some qualification for this claim. We have it in the Supreme Court. The Court has voted very narrowly on abortion issues recently, by a 5-4 margin. And with J.P. Stevens at 88 and Ruth Bader Ginsburg at 75, both could likely leave the court under the next president.

If there is any reason to get a leftist to put Green, anti-electoral, or other anti-vote-for-the-Democrats impulses on hold this year, it is the issue of who will be president, and thus able to select replacements for Stevens or Ginsburg. Friends don't let friends siphon votes from the Dem, a la Nader in '00.
Sure, the Democrats are imperfect, and tied to corporate interests, but consider the following.

We easily face an over-turning of Roe v. Wade.
But this is not the only issue. Republicans like to spur Democrats and progressives as supporting activist judiciary decisions. This is the idea that adopting a loose interpretation of the Constitution allows for passing decisions that please progressives, e.g., the Fifth and Fourteenth Amendments provide for personal autonomy, and therefore provide for the right to decide to opt to have an abortion. This kind of interpretation and justice is what undergirds Brown v. Board of Topeka, Kansas.
Yet, while they [Republicans/conservatives] target us for loose interpretations of the Constitution, they opt for the same, when it suits their ideological interests.

And, we progressives should be calling attention to the conservatives' own philosophy: activist conservativism. This allows for activist court rulings that further a conservative agenda.
What have been the goals of activist conservativism?
As Jeffrey Rosen wrote in "McJustice": Liberals' long-feared judicial apocalypse is nigh," the latest hard copy issue of "The New Republic,"

So let's assume that McCain gets to appoint at least one activist conservative to the bench. How would America and the law be transformed? The most significant effect of a McCain Court could come in areas pitting the Court against federal regulations passed by Congress. Before the crash of 2008, the previous two most serious depressions in U.S. history--in the late nineteenth and early twentieth centuries--triggered populist economic regulations by Congress and the states to protect citizens from the excesses of industrial capitalism. In both eras, conservative Supreme Court majorities struck down those regulations--from minimum-wage laws to parts of the New Deal--as an affront to property rights and limits on federal power. This triggered a political backlash from Americans convinced that the decisions were bad for the country.
So let's assume that McCain gets to appoint at least one activist conservative to the bench. How would America and the law be transformed? The most significant effect of a McCain Court could come in areas pitting the Court against federal regulations passed by Congress. Before the crash of 2008, the previous two most serious depressions in U.S. history--in the late nineteenth and early twentieth centuries--triggered populist economic regulations by Congress and the states to protect citizens from the excesses of industrial capitalism. In both eras, conservative Supreme Court majorities struck down those regulations--from minimum-wage laws to parts of the New Deal--as an affront to property rights and limits on federal power. This triggered a political backlash from Americans convinced that the decisions were bad for the country.

The Times in October 29's edition, called attention to the conservative majority of judge on the appeals and circuit courts, due to Bush, Bush I, Reagan.

See Charlie Savage's article, "Appeals Courts Pushed to Right by Bush Choices," in "The New York Times," October 29, 2008.

"After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control,"

A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.

But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.

Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.

Due to the power of the appeals courts, they have inveighed on issues, before cases reached the Supreme Court. . . . . Bush openly pandered to the ideological judicial conservative organization, the Federalist Society:

On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.

They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year — half what it considered a generation ago. And Mr. Bush’s appointees have found allies in like-minded judges named by Mr. Bush’s father and Reagan.

The article also gives you names of people that might end up on the Supreme Court, should John McCain reach the presidency.

So, listen, leftists, I would have preferred Kucinich and so on and so on . . . but consider how much worse America could be with a 1 or 2 liberal Supreme Court or a more solidly Republican judiciary.