I had assumed that Michael Goldfarb and Fred Barnes had established a gap between the intellect of someone challenging the qualifications of Sonia Sotomayor and the intellect of Sonia Sotomayor that could never be extended. I may have been wrong. You have to like the way she can’t even deliver the meaningless buzzwords cleanly (apparently, Sotomayor “litigates from the bench.” Oh noes!) Bonus points for the way the unbearably smug host pronounces Sotomayor’s name.
Unfortunately, this will probably be too late to help prevent an appalling precedent. I’d like to think that Stevens is gently asking Souter if this is really the way he wants to go out, sort of like what Earl Warren did with Stanley Reed when the latter was holding out on Brown…
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.
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 wrotedirectly 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…
I’ll be writing later this week about whether judicial appointments are ideologically predictable. But I find this assertion from Randy Barnett Barret rather problematic:
Everyone knows it’s all over but the spinning, but Lefties can take special solace in an odd trend: Liberal high court justices stick to their ideology on the bench while rightward picks have tended to drift to the left over time. Nobody can agree on why.
The poster children most often praised/cursed are Harry Blackmun, William Brennan, Sandra Day O’Connor, David Souter, John Paul Stevens, and Earl Warren — all of whom were nominated by Republican presidents and went on to side with the liberal bloc on key Court decisions. President Dwight D. Eisenhower ultimately described his appointment of Warren as “the biggest damn-fool mistake I ever made.”
It seems to me that Barnett is conflating two issues here: ideological drift, and judges who were picked for reasons other than ideology. Blackmun is the strongest example of a drift leftward over time, but between the fact that he was always moderate and his unique status as the author of Roe (who was consequently vilified by many conservatives), it seems equally clear that generalizing from his example would be foolhardy. O’Connor also drifted left, although this was partly her changing and partly the Court around her getting a lot more conservative. Stevens changed even less. But Brennan and Souter and Warren? They were never conservative by the standards of their time, there was never any particular reason to believe that they would be, and more to the point they didn’t change so much as start left and remain consistent.
And then, of course, there are counterexamples — Frankfurter, Black after 1960 — of liberal judges who became more conservative. Especially once you adjust for the fact that reactionary positions will tend by definition to be less popular over time, I don’t really see any evidence that ideological drifts are a one-way ratchet.
I am about to leave for Florida, on my annual pilgrimage to the ETS AP Comparative Government scoring session. I don’t consider this a full vacation, and may still blog sporadically; posting will be at a much lower rate than normal, however. Filling in will be UW trained political scientist David Brockington, who is all things to all people. Please extend every courtesy yada yada blah blah etc.
This blog went live five years ago today. I have updated our FAQ to reflect the changes since the last update of the FAQ. As always on these occasions, I’d like to thank the commenters, the lurkers, the trolls, all of the bloggers who have linked to us over the years, and everyone else who has spent even a bit of their valuable time at Lawyers, Guns and Money. We deeply appreciate, and we all thank you for making LGM what it is today.
In the interest of adding a crass commercial element to this touching moment, if you’re a wealthy social maladroit who can only express sentiment through money, we have options for you! You can purchase any number of fine LGM products through our Cafe Press store; just click the Elmo humping cat on the right sidebar. If you don’t want any of our crappy products, you can donate directly by clicking on the “donate” button, also on the right sidebar. If you’re only interested in supporting one LGM blogger (examples might include “That Farley is a moral idiot; I don’t want my money going to him,” or “I like LGM, but I’m worried that if I donate, my money might end up in the hands of Canadian terrorists”) the right sidebar also contains links to each blogger’s Amazon wish list.
Erik has some concluding thoughts on our series on George Herring’s From Colony to Superpower. For my part, I enjoyed reading the book and commenting on it. Patterson is considering using From Colony to Superpower on next year’s Summer Reading List, although we’ll may start at the beginning of the twentieth century, rather than with the Founders. This is necessary, but a bit unfortunate; I most enjoyed the early chapters, because I was reading about foreign policy episodes that I had previously been unfamiliar with. In any case, I heartily recommend the book, and it would make very solid summer reading even if you aren’t a student of US foreign policy.
Check out this fabulously informative article on Chinese SSBNs. The PLAN is building between four and six Jin-class nuclear ballistic missile subs, which when complete will constitute a deterrent on the same order as that possessed by France or the United Kingdom. According to the author, the Chinese believe that SSBN launched missiles can render a missile defense system useless, at least for the current generation of missile defense technology.
I am curious about what the boats mean for the future of Chinese naval doctrine. Whereas British, French, and US SSBN practice has focused on hiding, Soviet naval doctrine envisioned a layered defense of SSBN home areas. The Soviets believed (correctly) that Western attack submarines could detect their SSBNs, and as such structured air, surface, and subsurface doctrine around the idea of protecting base areas from incursion by US subs and surface vessels. It seems unlikely to me that these Chinese submarines will be able to reliably avoid interception and tracking by US submarines, which makes me wonder whether the PLAN will adopt measures similar to those of the Red Navy in the second half of the Cold War. This is relevant because the Soviet naval buildup was misinterpreted until the late 1970s; it took a long time for the USN to figure out that the expansion of Soviet naval capabilities was, in substantial part, oriented around defense of boomers.
I just finished reading Karen Greenberg’s excellent The Least Worst Place: Guantanamo’s First 100 Days, a book that is (for obvious reasons) relevant to the hyperventilating spasms currently being mistaken for a “debate” about what to do with the crown jewel of Bush administration lawlessness. It takes a more narrow approach to questions of law, detention and interrogation than recent work by Jane Mayer or Philippe Sands — whose books serve well as companions to Greenberg’s — but the book is a valuable reminder of why the facility (and the legal theories that gave birth to it) need to dismantled as soon as possible.
Greenberg focuses on the first three months of the facility because they coincide with the tenure of Michael Lehnert, the Marine brigadier general tasked with overseeing the initial wave of detainees brought to Cuba in early 2002. Less than a decade earlier, as part of Operation Sea Signal, Lehnert had managed a detention facility at Guantanamo for Cuban and Haitian refugees; there, as Greenberg explains, he developed a reputation for “tending to the spirit as well as the physical health of those in his custody.” In other words, while Lehnert’s earlier experience at Guantanamo (and earlier at Subic Bay) made him an appropriate candidate for managing a wartime detention facility, he possessed a moral sensibility that was completely alien to the people — Rumsfeld, Yoo, David Addison, Jim Haynes among others — who were developing the policies that would soon enough turn camps X-Ray and Delta into laboratories for torture and embarrassments to the rule of law. Lehnert and others in Joint Task Force 160 happened to believe that the Geneva Conventions were not, in fact, “quaint,” and they were by no means horrified (as the Bush administration was) by the suggestion that the Red Cross be permitted access to the facility and its captives. Indeed, to the degree that it would have been possible to create a “humane” situation, it seems that Lehnert and his colleagues were moderately successful at doing so, at least until the White House and the Pentagon clarified that the prisoners at Guantanamo were to be harvested around the clock for intelligence.
Greenberg’s account of Guantanamo under Lehnert is interesting for a variety of reasons, not the least of which is that it underscores two of the qualities — (a) an aimless incompetence on policy and (b) an abiding faith in the notion that beating the shit out of people produces decent tactical intelligence — for which the Bush administration will always be remembered. As she points out, Rumsfeld’s office along with the Office of Legal Counsel provided little guidance to Lehnert and his team as they prepared to accept the first round of detainees. He and his staff filled the void, albeit temporarily, with a body of practices that a different administration — one committed to following the law — might have judged acceptable, particularly if that administration had actually been interested in charging and bringing prisoners to trial. But the White House and the Pentagon, because they expected to leave the detainees on the island forever, quickly nudged aside the folks who had originally been assigned to the project, creating an entirely new task force staffed with people who had no qualms about “enhanced interrogations” and accepted the prevailing administration view that Gitmo detainees were insufficiently human to deserve Geneva protections. This parallel unit — JTF 170 — was focused on interrogating prisoners (rather than simply maintaining custody over them); its existence created additional confusion to an already fragmented situation.
Although The Least Worst Place suggests in some ways that the history of the Guantanamo facility could have turned out otherwise, such an outcome would have required a government that actually paid attention to people — like Lehnert — who seemed to have a decent, practical awareness of how to manage complex situations. For an administration that demonstrated continually that professionalism mattered far less than ideology, it’s depressingly hard to imagine how any of that might have come to pass.