We've already seen the first elements of what could easily become a phony struggle over the next Supreme Court nominee, whoever s/he may turn out to be. For one thing, we can count on a perpetration of myths by the propagandists. Media Matters has provided some handy deconstruction advice in this regard. There's already been the Jeffrey Rosen hit piece on Sonia Sotomayor in The New Republic last week. This was eviscerated by Glenn Greenwald, John Cole and others for the pile of anonymously sourced, factually challenged dung that it was.
And sexist, to boot. In his subsequent on-line defense, Rosen said his purpose had only been to challenge Sotomayor's judicial temperament. That effort seemed to be focused a good deal on demeanor, her penchant for asking tough, critical questions of both sides in an aggressive manner. Isn't this what we want? Isn't this the kind of attribute we would take as a positive if applied to a male judge possibly headed to the highest court in the land? Some guys just don't like it much when a woman questions them skeptically. For crying out loud, suck it up. If you can't stand the heat from a judge doing her job, you insufferable wimps, find another profession.
Rosen's smear had plenty of other problems as well, some laid out by dday a few days ago. Expect other possible nominees to get similar treatment.
It would be sad if smears of this sort made the White House walk on eggshells and choose a safely tepid nominee. The best choice would be the most qualified, smartest and most left-wing person available. That shouldn't worry the pragmatists in our ranks, because nobody on anybody's short list is nearly as far to the left as Clarence Thomas or Antonin Scalia are to the right. But whoever is chosen, the White House and the Democrats should follow E.J. Dionne's advice in the inevitable brawl that will follow. Force our foes into an open fight about real issues:
To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty. It's better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to "character," "qualifications" or "temperament."
Liberals, who (in my view, correctly) opposed Roberts and Alito on philosophical grounds, should thus not be hypocritical themselves and deny the conservatives' right to challenge a nominee's philosophy. On the contrary, liberals should welcome a real debate -- and win it.
But this also means that such matters as a nominee's sexual preference should not be a consideration and that an authentic debate would involve ideas, not slogans -- notably "judicial activism," "legislating from the bench" and "strict constructionism."
At the very least, we should apply such terms consistently to conservative and liberal nominees. Today, judicial activism is far more the habit of conservative justices than liberals. The real danger of a conservative Supreme Court is that it will rob Congress and the states of the right to legislate on civil rights, worker rights, the environment and social welfare, just as conservative courts did from the turn of the last century until the late 1930s. ...
...it's inescapable that any nomination will set off an argument over the court's philosophical direction because that happens to be one of the most important struggles in American public life. This issue, not the biographical details of the next nominee, should be the heart and soul of the debate.
Exactly. Democrats should not fear that debate but embrace it with a glad heart and a firm resolve.
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(h/t to David in NY)