But they do.
Why oh why can't we have a better press corps?
Hoisted from the Archives: Brad DeLong: Mendacious and Unfair Attacks on Sonia Sotomayor: Stuart Taylor, Jr.: As I have said before, nobody who wants to please The One Who Is has any business paying even a single red cent cent to the National Journal for any purpose as long as Stuart Taylor, Jr., writes for it. For we all remember that, to its eternal shame and disgrace, National Journal did not fire Stuart Taylor after he denounced our NATO allies for being
already in an overwrought tizzy about the supposed mistreatment of the 158 detainees at Guantanamo Bay...
Not to mention things like:
The perception that the Bush administration has systematically denied due process to the more than 650 alleged "enemy combatants" at Guantanamo Bay has both shocked Americans who care about the rule of law, me included, and done America enormous damage in world opinion. But... the administration has made a plausible case that its process for deciding whether to send prisoners to Guantanamo... has far more rigorous safeguards than had previously been disclosed...
I am rooting for Bush to go down in history as a great president.... How can we not root for Bush to win this campaign for Arab democracy?... [S]houldn't we sometime Bush-bashers -- and even the full-time Bush-haters -- be prepared to give great credit to him and his neocons, if and when it becomes clear that they have engineered a historic breakthrough?... [N]o matter how shallow, slippery, and smug Bush sometimes seems, if he ends up changing the world for the better, he will be entitled to a presumption of wisdom, even brilliance...
Now Stuart Taylor, Jr., is back!
Sonia Sotomayor said:
[O]ur gender and our national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion.... I am not so sure that I agree with that statement.... I hope that a wise Latina woman the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo... upheld both sex and race discrimination.... [W]e should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.... [N]ine white men on the Supreme Court in the past have done so on many occasions....
However, a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further.... I simply do not know exactly what the difference will be in my judging. But I accept there will be some....
Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I... owe [people] constant and complete vigilance in checking my assumptions, presumptions, and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require. I can and do aspire to be greater than the sum total of my experiences...
And here is what Stuart Taylor does with that speech:
Identity Politics And Sotomayor: [This] remarkable speech... deserves more scrutiny... Democratic Party's powerful identity-politics wing... seriously suggested that Latina women like her make better judges than white males.... [H]er basic proposition... white males... inferior to all other groups.... [A]ny prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.... [T]he president's emphasis on selective "empathy" for preferred racial and other groups as "the criteria by which I'll be selecting my judges" is not encouraging....
Do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality? Compare Sotomayor's celebration of "how wonderful and magical it is to have a Latina soul" and reflections "on being a Latina voice on the bench" with Judge Learned Hand's eulogy for Justice Benjamin Cardozo in 1938....
Some see such talk as tiresome dead-white-male stuff, from a time when almost all judges were white males.... I see it as the essence of what judges should strive to be.... [E]ven if a devotee of identity politics fills retiring Justice David Souter's seat, she will not have enough votes to encourage greater use of such racial preferences. Not yet.
It is an interesting question whether Taylor's holding up Cardozo as the just judge and thus hinting in the context of Sotomayor's speech that Cardozo's judgments upholding of race and sex discrimination ("three generations of imbeciles is enough") were rightly decided is unintentional--due to Taylor's rhetorical incompetence--or is intentional.
I am undecided on this question.
Stuart Taylor, on a Republican nominee:
Alito’s critics have similarly ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago.
On a Democratic nominee:
And some may see Sotomayor’s [innocuous] letter [written as an undergraduate] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton’s Board of Trustees.
So, if I understand correctly, memos Alito wrote directly about important constitutional issues while applying for an important government job should be disregarded, but letters that Sotomayor wrote as a student are somehow important despite their utter lack of relevance to any discernible constitutional issue. And I must have missed Taylor’s series of posts giving Sotomayor’s opinions the most moderate possible reading. But I’m sure he has deeply principled reasons for all this!
And note the additional hackery — to say that a circuit court judge is “respectful of precedent” is non responsive to the well-supported argument that Alito was doctrinaire conservative, both because how a judge interprets ambiguous legal materials is more important and because when elevated to the Supreme Court Alito wouldn’t be bound by precedent. (Alito has, of course, been exactly the completely doctrinaire reactionary the Bush administration expected when it picked him, because that’s what all the evidence suggested.) Strange, though — I haven’t seen Taylor even try to argue that the one case he’s ever cited to defend his proposition that Sotomayor is some kind of left-wing radical was inconsistent with 2nd Circuit precedent. Must be an oversight…
THE RACIALISM OF STUART TAYLOR.: The attacks on Sonia Sotomayor for being a "racialist" are [never more] laughable… than when they come from Stuart Taylor. Taylor, like others ,has taken this statement from Sotomayor completely out of context:
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life.
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example:
I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life
and had proceeded to speak of "inherent physiological or cultural differences."
First of all, Sotomayor did not speak of "physiological" differences, she was talking about life experience, and the idea that someone with the experience of being discriminated against might offer insight that those who haven't had that experience wouldn't have…. Does anyone seriously believe Dred Scott or Plessy v. Ferguson would have been upheld by any court that had the remotest idea of what it was like to be black or a slave? Or similarly that the court would have held in Minor v. Happersett that being a citizen didn't mean you had a right to vote if you were a woman? Do we really believe that judges in these cases were "simply upholding the law" in the absence of the cultural and social prejudices of their times?…
Senator Orrin Hatch suggested in 2005 (via Nexis) that Democrats could lose the Italian American vote by opposing him:
I think Democrats have to be very careful here because many Democrats think they own the Italian-American vote all up and down the East Coast. Well, they don't, but they think they do. But if they become offensive against somebody with the qualifications of Sam Alito, Judge Alito, then I think it's going to be held against them….
Taylor, who believes the greatest injustice in Western history was Sotomayor's failure to ignore established precedent in the Ricci case and act as an empathetic, activist judge on behalf of a plaintiff he finds sympathetic, has been a fervent supporter of racial profiling…. I'd be interested to understand how Taylor explain how the law should be color-blind in situations when he feels whites might be disadvantaged, but not when it comes to assuming people are criminals or terrorists based on the color of their skin. That sounds pretty "racialist" to me….
UPDATE II: On second thought, this is a much stronger quote:
I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.
Obviously, she thinks she's better than everyone else.