Reality Smites

Here is my biggest current fear in a legal nutshell.  It’s laid out succinctly by Jonathan Adler of Case Western Reserve Law School:

If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal — as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel — does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

It’s all the more disheartening because, having read a number of her cases, I was fairly happy with how she reasoned through the results in many of them.

But we rarely got a glimpse of that Sonia Sotomayor.  Partly, it’s because the questions focused on Ricci, the 2nd amendment and "wise Latinas" by design to obscure and blur the political lines on both sides of the aisle. 

Which is exactly what worries me in terms of the Democrats and the Obama Administration’s legal strategy. Something Digby tapped into as well talking about the pitfalls of bipartisan kumbaaya.

You can win an individual battle, yet cede the larger war.  And I worry we are doing just that, as Adler says.

Liberals should not be afraid to stand up and say they are liberal. Nor should we cower in fear over speaking in unabashedly liberal terms or fighting for the ideals that made us turn toward liberal politics in the first place.

Robyn Blumner made that exact point in a feisty op-ed regarding choice recently. It was an article that made me really stop and think about compromises and courage.

It made me turn back to one of my favorite JFK speeches:

. . . if by a "Liberal" they mean someone who looks ahead and not behind, someone who welcomes new ideas without rigid reactions, someone who cares about the welfare of the people — their health, their housing, their schools, their jobs, their civil rights, and their civil liberties — someone who believes we can break through the stalemate and suspicions that grip us in our policies abroad, if that is what they mean by a "Liberal," then I’m proud to say I’m a "Liberal."…

That’s only a small taste. Go read the whole of the speech.

I don’t know about all of you, but I’m placing a call to Harry Reid’s office [Phone: 202-224-3542 / Fax: 202-224-7327] today to ask about Dawn Johnsen’s OLC nomination. I haven’t had time to make my call this week, and I just know they are dying to hear from me about this…again.  And I’m going to keep making those calls until she’s confirmed.

What will your act of liberal patriotism be today?

(H/T to reader WB.)

 
56 Responses to "Reality Smites"
Christy Hardin Smith | Friday July 17, 2009 05:27 am 1

Morning all — Mr. ReddHedd already made the coffee. Life is good. How are thing with all of you?


SouthernDragon | Friday July 17, 2009 06:12 am 2

Mornin’, Christy. Woke up alive so everything on top of that is gravy.

Robin Blumner is a home town girl and isn’t afraid to take it to the PTB. She was very supportive of St Pete For Peace when we were battling the city over the barricades at BayWalk.


SouthernDragon | Friday July 17, 2009 06:14 am 3

There’s the world Congress lives in and there’s the world we live in and never the twain shall meet.


Christy Hardin Smith | Friday July 17, 2009 06:15 am 4
In response to SouthernDragon @ 2

Her article is incredibly feisty — loved the way she just hammered her points home in it.


Christy Hardin Smith | Friday July 17, 2009 06:16 am 5
In response to SouthernDragon @ 3

While I’m thinking of it, how is your ailing kitty doing?


SouthernDragon | Friday July 17, 2009 06:22 am 6
In response to Christy Hardin Smith @ 5

Gigi’s doing well, thank you. She got up on the waterbed and woke me before the alarm, then went and sat on the table where she’s fed. Wanted her breakfast, methinks. Her energy’s returning and she’s putting on weight.

If you read any of the comments to Robyn’s piece you have an idea of the leaning of the area. We’ve got some real fenderheads down here.


Phoenix Woman | Friday July 17, 2009 06:27 am 7

If George W. Bush could try (and almost succeed) in putting Harriet Miers on the court, President Obama sure as hell can put a genuine Constitutional law expert there.


Christy Hardin Smith | Friday July 17, 2009 06:27 am 8
In response to SouthernDragon @ 6

Oh good — I’m so glad she’s doing well. That’s got to be a huge relief for you!


Christy Hardin Smith | Friday July 17, 2009 06:29 am 9
In response to Phoenix Woman @ 7

I’d just love to see Dawn Johnsen finally get some support from Dem leadership and the WH and get a vote. This limbo crap is getting on my last nerve.

But you probably knew that. *g*


SouthernDragon | Friday July 17, 2009 06:30 am 10

This bipartisan kumbaya is horseshit. The country leans left but Congress leans right, hence the cry that the country leans right. Congress today in no way reflects the makeup of the country. With gerrymandering each party is focused on getting and maintaining control in DC, not governing. We need people who are willing to govern for the welfare of all. Oh, welfare, the ultimate uberreichwingnut buzzword.


wigwam | Friday July 17, 2009 06:31 am 11

I got very confused as to exactly where the discussion shifted from Dawn Johnsen to Sonia Sotomayor. When Alter said:

President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

Which one was he referring to?


SouthernDragon | Friday July 17, 2009 06:32 am 12
In response to Christy Hardin Smith @ 8

It’s a mixed bag. Once I get her weight up enough were she can be sedated for an extended xray of head session there’s the results of that to deal with. A tumor means we’re out of options. No tumor, I haven’t a clue as to what we can do.


Christy Hardin Smith | Friday July 17, 2009 06:34 am 13
In response to wigwam @ 11

Sotomayor — her confirmation hearing performance was geared to not turn off moderate GOP members. And to prevent a filibuster to get her through the committeee and out for a vote on the floor.


perris | Friday July 17, 2009 06:37 am 14

Liberals should not be afraid to stand up and say they are liberal. Nor should we cower in fear over speaking in unabashedly liberal terms or fighting for the ideals that made us turn toward liberal politics in the first place.

when someone asks me if I’m a liberal I use;

“I am not as liberal as the founders who created this nation but far more liberal then the neo cons who destroyed their vision”

I am also concerned about ss’s seemingly corporation preferred decisions.

I am one of the few people here who couldn’t care less if ss does not get confirmed

bush used non comfirmation to then suggest someone even more concervative and that person did get the nod, I doubt obama understands that principle though


perris | Friday July 17, 2009 06:41 am 15

to me, a big mistake, we need some people on the bench who are clearly the antithesis of roberts and alito, those people can not set the bar to be measured against.

I think he needed to fight the battle right away, go for the progressive and then counter with an even more
progressive if the first one didn’t get through


60thStreet | Friday July 17, 2009 06:42 am 16

Great article. I think the issue is a problem of perception of what the “larger war” is. It most certainly involves getting more Liberals in government, especially lifetime appointments, but I see the larger war as combatting the conservative propaganda that continually pushes big “L” liberalism into the fringes.

It was frustrating watching Democrats cede this ground in the hearings and it was obvious that the administration coached Sotomayor to take a non-combative and deferential approach to Senate Republicans. But, the important thing here was maintaining the “foregone conclusion” of her appointment and in spotlighting the Republicans as the ones who heartily carve the racial divides in this country.

If the larger war is more Progressives in government, I can’t see how reminding the public to how vitriolic and backwards-focused rich white Republicans really are, hurts that cause. I also don’t see how strengthening the bond between the Latino vote and the Democratic party hurts it either.


oldgold | Friday July 17, 2009 06:42 am 17

After Bork, a muted performance at the confirmation hearing seems to be the ticket onto the Court. As I mentioned yesterday, television likes cool and orderly perfomances.


SouthernDragon | Friday July 17, 2009 06:43 am 18
In response to perris @ 14

I’m confused.

On one hand Sotomayor may be too conservative for you but on the other if she’s not confirmed Obama might appoint a more conservative person.

If she’s not confirmed a more liberal person doesn’t stand a chance so I’m not seeing your position clearly.


SouthernDragon | Friday July 17, 2009 06:44 am 19

Off to swim in the great capitalist cesspool.

Be good to yourselves, and all other living things.

Namaste


ChrisB | Friday July 17, 2009 06:50 am 20

I know it’s hard to be patient. I find it very hard. But I thinks Obama’s and the Democrats strategy is all about 2010. I have seen this strategy used to great effect by left leaning governments in Australia. During the interim period they were very cautious, jut like Obama. But the result at the next election was a massive landslide. As I see it there is a large number of senate seats within striking distance. Ready for the taking.


perris | Friday July 17, 2009 06:51 am 21
In response to SouthernDragon @ 18

I think the republicans were going to obstruct no matter who obama appointed, the more they obstruct the further into the depths they go in poplularity

last night I played a tenis match against someone who loves to run after balls

I deliberately did not finish the point, making him run as long as possible

he won this point which was very important to him, he lost that game and the set handily

same thing with this appointment, the republicans needed to make a stand, win or lose the next person would be easier to confirm even if they are more progressive


SouthernDragon | Friday July 17, 2009 06:54 am 22
In response to SouthernDragon @ 19

I forgot something.

US KIA Afghanistan: 740


oldtree | Friday July 17, 2009 06:55 am 23

How often do the nominees for SCJ do anything like what they are asked in these photo sessions? Al Franken showed us just how important the process is. An episode of Perry Mason.
We have had extreme liars during the Bush admins. These two goons installed people that have gone beyond the law, and make personal policy from the SC bench. They need to be recalled and impeached, yet we do nothing as they continue to destroy any hope for the individual in this country. Their rulings help only their friends and their benefactors. This is not law or justice. It is the end effect of persistent bribery.


SouthernDragon | Friday July 17, 2009 06:55 am 24
In response to perris @ 21

Methinks you misunderestimate Rethug Senators.


Christy Hardin Smith | Friday July 17, 2009 06:57 am 25
In response to 60thStreet @ 16

I do worry that there is not a broader strategy to expand the mandate — rather than simply hold ground where things are. And when we allow ourselves to be defined by people who clearly do not agree with our end of politics, then we are ceding that larger battle to them from the start.

And that’s a recipe for failure down the road.


Twain | Friday July 17, 2009 06:57 am 26
In response to perris @ 21

I agree and I don’t think we know what Sotomayor will be – remember Earl Warren. :)


Kathryn in MA | Friday July 17, 2009 06:59 am 27

OT – Would anyone like to have my registration at NetRoots Nation? I can’t afford to go, being out of work. i also have reservations at the hotel that’s a few blocks away – not the one with the connection to the convention center. email my first name dot rifkin at comcast dot net.


Christy Hardin Smith | Friday July 17, 2009 06:59 am 28
In response to ChrisB @ 20

I would agree — except that I’ve spent the greater part of the last few years attempting to explain the need for having an up front strategy on legal appointments, an over-arching theory of justice and liberty, and a need to present it to the public to folks on the Hill who don’t see the need to have any sort of coordinated anything on any of this, and have a “chips will fall where they will” kind of attitude. Which may work in individual cases but does not serve us well to build this over time.

And that worries the hell out of me from a legal perspective.


Christy Hardin Smith | Friday July 17, 2009 07:01 am 29
In response to oldgold @ 17

Definitely true in terms of the cameras and what plays well in that context. I like to think of it as the Meryl Streep phenomenon — the camera loves her precisely because everything she does is so subtle, nuanced and not over the top for the most part.

It’s the same for political teevee — the person who wins the argument is the one who remains the calmest in terms of visuals, above and beyond what is said.


Christy Hardin Smith | Friday July 17, 2009 07:02 am 30
In response to Twain @ 26

You never know until the get on the bench what they will do — that lifetime appointment can be incredibly freeing for some. *g*


perris | Friday July 17, 2009 07:04 am 31
In response to SouthernDragon @ 24

I understand them pretty good, they will do whatever it takes to deny anything obama does

ss was a brilliant choice for oboma since she was a bush appointee making it hard to attack her but I really thing the scotus should be a no compromise appointee, they have been weighed far to corporate and need a sharp turn asap if we are to be saved from their corporate rulings


oldgold | Friday July 17, 2009 07:05 am 32

Sotomayor and Streep, damn, that is an interesting comparison!


TarheelDem | Friday July 17, 2009 07:05 am 33

There is no excuse for any of Obama’s appointments to be further delayed.

And the Surgeon General appointment should be fast-tracked.


wigwam | Friday July 17, 2009 07:05 am 34

In that case, it appears that Jonathan Alter considers Obama a liberal, whereas from all I’ve seen he’s well right of center, and on civil liberties he seems to be to the right of Bush (e.g., preventive and/or post-acquittal detention).


foothillsmike | Friday July 17, 2009 07:06 am 35

Especially when they are doing that crack cocaine thingy in the judiciary committee. *g*


NelsonAlgren | Friday July 17, 2009 07:07 am 36
In response to ChrisB @ 20

But we’ve been hearing that for ages. Hell, Reid was whining about not having 60 votes. Now we have it and we can’t even get EFCA passed. And Obama ran on it!!


Christy Hardin Smith | Friday July 17, 2009 07:09 am 37
In response to wigwam @ 34

I think Obama’s to the left of center. I know a lot of ultra-right-wing folks and middle of the road folks and blue collar dems who vote republican, etc., etc. here in WV — and Obama’s certainly to the left of all those folks on most social issues — which is how they judge him, frankly.

I think sometimes we allow the narrow confines of whatever blogdom we inhabit to begin to define how we see the broader perspective on the country — but it tends to be highly self-reinforcing sometimes on our own perspectives if we don’t venture out to really peek at what others outside our circle think. I’ve been purposely trying to do that a lot more the last few months and it’s been both frustrating and enlightening on a lot of levels.

Calls into question some assumptions and reinforces others, depending on the context. But it certainly helps to strengthen my arguments in doing so. (/end of ranty moment. Sorry about that!)


demi | Friday July 17, 2009 07:10 am 38

Oh, yeah. Remember what speech killed Howard Dean’s Run? Isn’t it sad, but true. And, it’s not always the veracity of what they are saying, but How they are saying it.
It ain’t the meat, it’s the motion. Odd metaphor maybe, but I believe it applies.
And, Judge Sotomayor Was Smooth, wasn’t she?


Christy Hardin Smith | Friday July 17, 2009 07:10 am 39
In response to oldgold @ 32

Watch Out of Africa sometime and you’ll see what I mean about her ability to keep her face still so that the tiniest nuanced movement becomes enormous — and how much the camera loves that placid sort of performance. Streep is brilliant at playing the camera like a fiddle for the visual effect she wants — absolutely brilliant.


Crosstimbers | Friday July 17, 2009 07:15 am 40

At least at this point in the administration, the strategy seems to have been “don’t feed the trolls.” It would be my guess that they decided to practice the common wisdom that the battle was won before it started, the opposition is becoming increasingly insane, and it would be best to accept the victory. I don’t think the hearings had too many watchers, so there was no great opportunity to effect public opinion. Still, I understand your concern and agree. On the next nominee, I would like to see the very heavy weight on the left side of the fulcrum.

Slightly OT, last night John Stewart responded to Lindsey Graham’s reading anonymous attorney comments on Sottomayor by reading internet comments about Graham.


Christy Hardin Smith | Friday July 17, 2009 07:18 am 41
In response to foothillsmike @ 35

That was the most hilarious thing I’ve seen in a committee hearing in ages. hehehehehe


demi | Friday July 17, 2009 07:19 am 42

I just rewatched The Devil Wears Prada, and even when playing a Big character like the one in that movie, her facial expressions, that subtle smile is just amazing. She blows me away. Like listening to a virtuoso musical performance. I just love excellence.
And, thanks for the left of center comment. I’m glad to know I’m not alone here. Some of the comments make question my sanity sometimes. I do not think the citizens of this country are left of center and the congress is not reflective of them. And, I live in an area that is more liberal than most of the country, but I keep my eyes and ears open and try to pay attention.
One of the songs we are doing at our concert next week is Draw The Circle Wide!


Christy Hardin Smith | Friday July 17, 2009 07:19 am 43
In response to Crosstimbers @ 40

You know, I hadn’t thought about it in a “don’t feed the trolls” capacity, but that does work as an analogy on a number of levels, doesn’t it? *G* (Especially with regard to Pat Buchanon.)


bgrothus | Friday July 17, 2009 07:21 am 44

GM, Christy and all.

I was watching an interview with Norman Lear last night. There were clips of some of his shows, including some with Archie Bunker. I realize that Archie is the model for Rush et al. Only Lear was smart and had the dialog to immediately correct Archie’s stoopit. It was instructive.

Rush is all Archie allatime.


Christy Hardin Smith | Friday July 17, 2009 07:24 am 45
In response to demi @ 42

I actually think the country is more left of center than most of us ever get to see. I see that a lot here in WV in terms of populist sentiment on the economy and other issues — but it gets muddled because of the constant drum of the right-wing on God, guns and gays and whatever other boogeyman of the moment they happen to be pushing to threaten people’s souls if they vote with liberals.

The liberal wing just isn’t as good at communicating why their side need support, too. But, heaven knows, I’ve been struggling with a better way for several years now and still haven’t gotten that perfect A ha! moment. *g*


Christy Hardin Smith | Friday July 17, 2009 07:27 am 46
In response to bgrothus @ 44

Norman Lear is a genius. Between All In The Family and Maude? Pure genius.


Crosstimbers | Friday July 17, 2009 07:29 am 47
In response to bgrothus @ 44

I’m sorry. My late father-in-law was the model for Archie Bunker. I don’t know who served as the model for Meathead.


demi | Friday July 17, 2009 07:33 am 48

Well, yes, I agree. I guess we have to specify which issue we are looking at the center of. In speaking with folks, at the store or Post Office or where ever, when I talk with them about gay marriage or health insurance for instance, I’m surprised how otherwise seeming nice people start to show their fear of “others”. How giving everyone rights or access somehow threatens their own control. Interesting. I some times (perhaps wrongly) attribute an Open Mind to Liberal and a Narrow Minded vision to Conservative.


bgrothus | Friday July 17, 2009 07:39 am 49

Apparently Norman Lear’s father was your f-i-l, Crosstimbers. (g)

I am still hopeful that Obama is going to appear better as we go along. I still think he is moving us forward, even though I don’t like alla his moves. The evidence route on prosecution is a good path. I think it is moving there, for example, on torture. The drumbeat is getting hard to ignore.

He is trying to move the legislation. Let’s see where healthcare goes.

Holder follows another agenda. I think we will see action.


bgrothus | Friday July 17, 2009 07:50 am 50

demi, I can’t believe how many people hate bicycle riders! Yes. Amazing.

One of my neighbors was killed on her bicycle recently. It is incredible how much vitriol is spewed on-line against her and others who have the nerve to think that drivers should be courteous to bike riders.

A real hatred that totally took me by surprise.


Twain | Friday July 17, 2009 07:53 am 51
In response to bgrothus @ 50

It’s certainly that way in SF. Although I don’t live in the city the reports of confrontations are awful.


60thStreet | Friday July 17, 2009 07:57 am 52

I agree. The problem is that most people, even activists, perceive that road as linear, and as the country traveling down it going from the right through the center and eventually into Progressive policy, but, Republicans don’t work like that. The work very hard to redefine moderate liberalism as extremism on one front (Sotomayor), and on another they champion it as conservative (Centrist Democrats checking Progressive policy).

I see that the public buys it, although I see that the Republicans are having less success in cementing certainty than they used to and that is something on which Obama needs to capitalize. In the end it is a question of methods and he’s gonna have to deal with growing Progressive displeasure in his and I hope he is getting his ducks in a row to push the mandate. It’s very difficult to be patient or if that is even a virtue and not a liability at this point.


foothillsmike | Friday July 17, 2009 08:00 am 53
In response to bgrothus @ 50

There are extensive bike paths and bike lanes here and lots of bike riders. Most drivers and bike riders are courteous but there are some on both sides that are not.


demi | Friday July 17, 2009 08:12 am 54
In response to bgrothus @ 50

That is just too sad for words.


MrWhy | Friday July 17, 2009 08:32 am 55

Looking back at the Sotomayor hearing, a few things stand out. She did not completely walk back from her wise latina remark, she said she chose her words poorly, the comment fell flat. She did this is a milquetoast manner, but she did have the sense to not abjure the remark.

Second, her sharpness in response to stupid questions did show through on occasion. She was wise to hold it in check, because she was clearly annoyed at the obtuseness and rudeness of various senators, but she needs to not insult them.

What will she be like as a Supreme Court justice? We cannot know in advance, but I take heart in her answer to Senator(!yay!) Franken, who asked, why do you want to be a Supreme Court justice?


earlofhuntingdon | Friday July 17, 2009 09:00 am 56

Yes, please. Time to turn Obama’s pretty words into real action. Confirm Prof. Johnsen. Get her work, professionalism and leadership into a DoJ still corrupted by Bush holdovers and political cowardness masquerading as legal deliberation. Time to stop dangling her before the public as a token liberal without ever actually hiring her and following her considered advice.


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