< Court and Spark


Friday, May 29, 2009

BOB GARFIELD: And I'm Bob Garfield. With the choice of Federal Judge Sonia Sotomayor to fill Justice David Souter’s vacancy on the U.S. Supreme Court, President Obama seems to have found an unsinkable nominee - an inspiring personal biography, a long history of judicial even-handedness, presumed dependability on the litmus test issues nobody can actually speak aloud and, not insignificantly, an Hispanic female twofer. But never mind Sotomayor’s qualifications. In the weeks leading up to her confirmation hearings, she will be subjected to public evisceration. Tom Goldstein, a partner in the lawfirm Akin Gump and founder of ScotusBlog, says any high court nominee is but fuel for the politics industry.

TOM GOLDSTEIN: No matter how principled, thoughtful, smart and qualified the nominee, the other side will immediately paint them as an activist, outlier, outside the box, unprincipled person hell bent on destroying the Constitution.

BOB GARFIELD: But there was a bonus this week, because the likes of Rush Limbaugh and Ann Coulter and even former speaker Newt Gingrich pled the racism card. They suggested that Sotomayor is a reversed racist, based on a remark she made some years back. Tell me about that.

TOM GOLDSTEIN: In a speech that was converted into a Law Review article at Berkeley, she said that it’s my hope that a Latina judge will make a more wise decision than a white male judge, something to that effect. And she's really talking about the simple fact that we are the sum of our experiences, and someone who has lived a different life from an upper middle class white male has been through more, has seen more, can add to the discussion. Anybody can have one sentence in their life kind of plucked out of context and made into a lot more. You can line that up with a half-dozen cases where she’s ruled against the discrimination claims of African-Americans and Hispanics and realize that she’s not deciding cases on the basis of her race.

BOB GARFIELD: This is exactly like the opposition research that occurs during political campaigns, political operatives poring over reams of material looking for a gotcha.

TOM GOLDSTEIN: It’s exact - exactly like that because they want to put them up on television advertisements. And, and just to be clear, this is not a unique criticism of the ideologically engaged right. This was just as true when John Roberts was nominated, and Sam Alito was nominated. And it’s deeply unfortunate because it’s, you know, not just wrong for the individual, but it undercuts the integrity of the federal judiciary.

BOB GARFIELD: Okay, now here’s one difference between the Supreme Court nomination and a political campaign. In a political campaign, both camps get to go at each other and the -


BOB GARFIELD: - the candidate is perpetually on the stump, putting his best foot forward. In the case of a judicial nominee, they more or less just sit there mute for six weeks throughout the process, until they finally get to testify before the Senate Judiciary Committee. How does that change the media dynamic?

TOM GOLDSTEIN: It is terribly unfair to the nominees. Sonia Sotomayor, by tradition now, doesn't get to respond to those critics. Now, does that mean that the White House and she are totally powerless? No - not at all. They can find surrogates. They arrange calls. There was a call yesterday with the media, with people who agree with their position. And they can get their views out there. But the public, when this is a claim about the individual, about the nominee, and it’s something so jarring and serious that the person is a racist, the public, in the sort of political campaign mode, expect to hear from the individual, from her mouth, what she meant. And it’s really not used to and not adapted to the weird context of a nomination that actually it’s not going to be her. So those words from her are going to sit out there in that YouTube clip, and the public won't hear from her for anther six weeks.

BOB GARFIELD: You know, there’s one last wrinkle to this, and that is, barring the discovery of bodies dug up from underneath Sotomayor’s porch -


BOB GARFIELD: - she’s going to be confirmed by the Senate. She’s a, you know, relatively uncontroversial nominee. Tell me, again, what’s the point of all this frenzy?

TOM GOLDSTEIN: The point of it is fundraising. The point of it is for these organizations on the left and the right to justify their existence. We're not talking about the big questions, about how expansively to read the Constitution or whether there’s a right to privacy that involves an abortion right, those sorts of things. So there doesn't seem to be a good point.

BOB GARFIELD: If it’s true, as you assert, that this process occurs largely to give a raison d’etre and a fundraising d’etre to polarizing political organizations, should news organizations not keep that in mind before they rush to report the most extreme allegations and overheated rhetoric?

TOM GOLDSTEIN: I think that they should. They shouldn't be dismissive when there are real issues about a nominee. Even if that’s brought to your attention by an interest group, that’s perfectly fine, but you have to just put on a filter of common sense that lets you know whether or not this is a serious charge in a very serious context or it’s just somebody who has set their hair on fire in order to draw attention to themselves. And here, so far, it seems much more the latter than the former.

BOB GARFIELD: I - I just want you to know, Tom, that I don't really believe that fundraising d’etre is - is a word in any language.


[BOB LAUGHS] You’re going to be on the radio [LAUGHING] saying that.

BOB GARFIELD: [LAUGHS] Tom, thank you so much.

TOM GOLDSTEIN: Appreciate it.

BOB GARFIELD: Tom Goldstein is founder and contributing editor of ScotusBlog.