June 29, 2009

Reading helps

True, it does. Writes law professor Rick Esenberg:
Contrary to the uninformed speculation of this blogger, I am familiar with Sotomayor's record and, as I said in the column (reading helps), it is conventional if "liberal."
Except I didn't say he wasn't.

I said the contrast between the two columns that appeared on the front of a section in yesterday's Milwaukee Journal-Sentinel was that one was based on an examination of her record and the other discussed what Esenberg calls Sonia Sotomayor's "political assumptions" (although the political assumptions in evidence are primarily Esenberg's own, derived as they are from a couple of offhand remarks made by the judge in informal settings).

Since Judge Sotomayor hasn't yet been afforded the opportunity to explicate her comments, in the meantime Esenberg's personal speculation remains exactly that: a set of political assumptions.

More to the point, I was sarcastically observing that it was pleasant to discover the Journal-Sentinel soliciting an opinion column for once from some lawyer other than Rick Esenberg.

The icing on that cake was that the other lawyer, Edward Fallone, appropriately focused on Sotomayor's record and accomplishments rather than the aforementioned offhand remarks, which have elicited a cri de guerre — however tenuous and speculative itself — from conservative Republicans in search of any justification to oppose Sotomayor's nomination to the U.S. Supreme Court.

In spite of her record and in spite of her accomplishments.

Now this morning Esenberg claims he isn't all that interested in Sotomayor's 16-plus-year record as a federal judge anyway — she is merely "conventional," sniffs the professor — but only in those decisions of hers that reached the Supreme Court on appeal.

I'll leave it for the actual uninformed speculators to divine why that, then, wasn't the subject of Esenberg's Journal-Sentinel column, instead of its being yet another rehearsal of the now-familiar conservative Republican talking points.

Speaking of the relatively miniscule number of cases where the Supreme Court accepted an appeal from one of Sotomayor's decisions, the Court will shortly rule on Ricci v. DeStefano, the celebrated firefighter "discrimination" case out of New Haven, CT.

The case has inspired some of the most ridiculously incoherent and ill-informed commentary from miscellaneous conservative Republicans, who normally demand that judges defer unwaveringly to the "will of the people," as expressed by statutory language and promulgated by the executive branch through administrative law.

That is what Sotomayor and the other judges did, in determining that New Haven scrupulously and in good faith adhered to the requirements of federal law. Suddenly and with suspicious convenience, doing so is practically grounds for impeachment.

Talk about your political assumptions.

In the event that Sotomayor and the Second Circuit are reversed, and barring any earth shattering upheaval of federal affirmative action policy — a.k.a. "judicial activism" — the district judge who originally ruled in Ricci will likely be admonished for not according due weight to a certain set of evidentiary facts presented in the initial lawsuit.

The Court's conservative judges shall accomplish this by enforcing judicial policy, policy fabricated by conservative judges and today reiterated and perhaps even strengthened by conservative judges.

And conservative Republicans will applaud heartily, even as they continue to deride Sonia Sotomayor for informally and impertinently alluding to the very process about to be revealed.


Blake said...

I haven't read the decision, but in preliminary news reports I see the decision was 5-4 along predictable lines.

Does it hurt being right so often, IT?

illusory tenant said...

Yes, and where's my daily injection of Demerol. But it was an easy prediction. Also, the outcome did depend quite a lot on whose presentation of the evidence one prefers.

Alito devoted a lengthy concurring opinion to that issue, objecting to the way the dissenters presented that evidence (even though he said it wouldn't have made any difference to the "correct" result).

Rick Esenberg said...

You miss the point entirely, but I am glad that you liked Ed's column since I suggested to the JS that we do a dueling op-eds and asked Ed to write "in opposition" to me. We obviously disagree, but that was the point of the exercise.

illusory tenant said...

"You miss the point entirely ..."

Or, just maybe, I'm making a couple of different ones (which I won't accuse you of missing).