Libertarians and Conservatives: Still Not Sitting in a Tree; Sotomayor Edition

Matt Welch | June 3, 2009

Distinguished legal scholar Richard Epstein (read his Reason archive here), who has been making various libertarian critiques of Barack Obama's first nomination to the Supreme Court, has a Forbes column out about "the serious intellectual weakness in the conservative case against her confirmation." A snippet:

There is no disagreement from me that empathy is a poor guideline for constitutional decision making. Nor do I believe that our "malleable" Constitution should be the plaything of the justices. But it doesn't follow from these points that it's a cardinal judicial sin to upset federal or state legislation. Nor does some implicit, overarching judicial norm of "strict construction" condemn most forms of judicial intervention.

That narrow conception of the judicial role may be congenial to conservatives who think democratic outcomes almost always have greater legitimacy than judicial ones. As a libertarian, however, I do not share that judgment. The Founders well understood the risk of faction, which could allow simple majorities to restrict the liberties or confiscate the property of their political opponents. [...]

However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Meanwhile, distinguished man about town and Reason Contributing Editor Julian Sanchez (archive here) rails against some of the inaccurate Sotomayor insults emanating from The Weekly Standard and elsewhere.

[A]s you watch these gross distortions pile up, you start coming away with the clear impression that they're not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences—and that there's no need to double-check and see whether that's supported by the facts in this case.  They just know she can't have really earned it. [...]

They really have no idea how they sound to anyone else.

Reason on Sotomayor here. 

Comments

|6.3.09 @ 10:09AM|#

[A]s you watch these gross distortions pile up, you start coming away with the clear impression that they're not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences ...

Sigh.

No, actually, you get the impression that people who lean right don't like people who lean left, and that conservatives don't like leftist judges.

It's really not any more complicated than that.

Xeones|6.3.09 @ 10:13AM|#

They really have no idea how they sound to anyone else.

Self-reflection has never stood in the way of anyone with a political axe to grind.

|6.3.09 @ 10:27AM|#

[A]s you watch these gross distortions pile up, you start coming away with the clear impression that they're not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences-and that there's no need to double-check and see whether that's supported by the facts in this case. They just know she *can't* have really earned it. [...]

They really have no idea how they sound to anyone else.

Hate to be the skunk at the garden party, but I strongly suspect that this would also apply to the Libertarian Party 2008 VP nominee.

|6.3.09 @ 10:27AM|#

They really have no idea how they sound to anyone else.

I suspect the same could be said of Sotomayor's famous Berkeley speech on Wise Latinas. I'm sure she was very surprised when it became controversial.

No one really has a very good idea how things will come off outside of the bubble they live in.

a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences

Obama certainly laid the groundwork for this complaint on Sotomayor in particular by making it very clear that he was picking an otherwise undistinguished Circuit Court judge for her gender and ethnic background.

Neu Mejican|6.3.09 @ 10:31AM|#

RC Dean,

No one really has a very good idea how things will come off outside of the bubble they live in.

c.f.,

"Obama certainly laid the groundwork for this complaint on Sotomayor in particular by making it very clear that he was picking an otherwise undistinguished Circuit Court judge for her gender and ethnic background."

flugger|6.3.09 @ 10:35AM|#

No, actually, you get the impression that people who lean right don't like people who lean left, and that conservatives don't like leftist judges.

Given her track record, there's very little evidence (other than her nomination) that she leans left. She's followed established legal precedent to the letter.

DADIODADDY|6.3.09 @ 10:40AM|#

She's so wise...but can't seem to picture her naked.

|6.3.09 @ 10:46AM|#

" but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences-and that there's no need to double-check and see whether that's supported by the facts in this case. "

Almost sounds like what liberals say about Clarence Thomas. Look it sucks to be accused of being a racist in public. But that is what liberals have been doing for years. Judge Pickering, a guy who once risked his life and career to testify against a grand wizard of the KKK in 1967 in Mississippi, was denied a spot on a circuit court because liberals accused him of being a racist.

The Sotomayer nomination can result in some good things. Republicans need to go after Sotomayer and make liberals go on record admitting that what happened to Bork, Miguel Estrada and Pickering was disgusting and wrong. That way they lose the ability to engage in such shenanigans in the future.

Brandon|6.3.09 @ 10:47AM|#

The debate shouldn't be over a judge's propensity to either let a law stand or strike it down. The debate is over a judge's inclination to understand and apply the words of the Constitution as they would have been understood and applied when they were written. A judge who is inclined to do that will generally reach decisions that make conservatives happy. Libertarians will be made happy less often, but I argue such a mode of interpretation nevertheless serves liberty better than the alternative, which is essentially government by the whims of judges.

Fascitis Necrotizante|6.3.09 @ 10:47AM|#

Why can't we get a wise Nina Mercedez on the SCOTUS?

|6.3.09 @ 10:48AM|#

If liberals don't want to admit that what they did to Pickering, Estrada, and Bork was wrong that is fine to. We know what the rules are then. So it is perfectly within the bounds of politics, as it is currently played, to tar her with being a racist and affirmative action baby.

|6.3.09 @ 10:49AM|#

Oh, I disagree, Brandon. A strict Constitutionalist judge would make libertarians delirious with glee, and cons only slightly less glum than libs.

|6.3.09 @ 10:51AM|#

Isn't it actually smart of the GOP to make this all about race and gender? Because now everyone is ignoring her judicial track record, which is kind of boring and straitlaced, it seems, which, if she were white, would make for a pretty simple confirmation.

Remember, the GOP doesn't care about what her judicial track record is; both they and the Dems, at this point, oppose the other side's nominations solely because they are the other side's nominations. If you look at it that way, the GOP is making the right move here--it sensationalizes an otherwise non-sensational nomination.

MNG|6.3.09 @ 10:51AM|#

"debate is over a judge's inclination to understand and apply the words of the Constitution as they would have been understood and applied when they were written."

Understood and applied might not be the same thing. For example, the understanding of the words "equal protection of law" when they were written down would strike down racial preferences, but almost certainly the writers of those words didn't expect that would be how they would be applied (these were the same Congresses who passed all the Reconstruction programs aimed explicitly at helping blacks).

The Angry Optimist|6.3.09 @ 10:51AM|#

The debate is over a judge's inclination to understand and apply the words of the Constitution as they would have been understood and applied when they were written.

Does that apply to the Eighth Amendment's "cruel and unusual punishment" clause?

Are phone calls and e-mails included in this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

|6.3.09 @ 10:51AM|#

NM, are you arguing that Sotomayor is a distinguished Circuit Court judge? Or are you disputing that her gender and ethnicity played a significant role in her selection?

Or do you agree with all that, and just think it shouldn't be pointed out in polite company?

MNG|6.3.09 @ 10:54AM|#

"So it is perfectly within the bounds of politics, as it is currently played, to tar her with being a racist and affirmative action baby."

"If you look at it that way, the GOP is making the right move here--it sensationalizes an otherwise non-sensational nomination."

I disagree. This is going to be harmful for the GOP. Women and minorities are going to see the GOP as more suspect than they already do. The only people who are going to find this stuff appealing is going to be young angry white dudes, whom the GOP already has.

Look, already two Reason writers, both of whom happen to be members of groups that the GOP really has to do better with (women and Hispanics) to have a shot at being a majority party again, have expressed their disgust and suspicion of the conservative attack (Howley and Sanchez). Can't you see what's going on?

MNG|6.3.09 @ 10:56AM|#

Given what we know of our Founders it strikes me a bit odd to imagine that when they wrote a prohibition on "cruel and unusual" punishment that they hoped that 200 years from now we would, rather than examining what that concept means to us today, that they meant for us to say "hmm, what was well accepted as cruel and unusual back in 1789? Well, that's all that is barred!"

|6.3.09 @ 10:58AM|#

This is going to be harmful for the GOP. Women and minorities are going to see the GOP as more suspect than they already do. The only people who are going to find this stuff appealing is going to be young angry white dudes, whom the GOP already has.

That's not the point. The parties have become myopic in their quest to define themselves in opposition to one another even as they become more similar and statist. All they see is "oppose the other side to the best of our ability, that'll show people we're different!"

If their main purpose is to block nominations--no matter whom--it makes sense. Dude, if Obama nominated Bork at this point, they'd do the same thing.

P.S. Any replies to this comment will most likely consist of ad homs, as libertarians concede my points and show their childish, anti-intellectual nature.

|6.3.09 @ 11:00AM|#

Go back and look at what Obama said when he voted against Alito and Roberts. He said that while they had great character, he couldn't vote for them because they too often sided with powerful interests against the less powerful.

Now he tells us character and experience is all that matters. If you put it together, his seemingly contradictory statements actually reflect a consistent world view. Alito and Roberts were white males. Their character and experience mean nothing. They may be nice guys, but because they are white men, they must prove they are good people through action. Being white and being male makes them suspect.

Sotomayer in contrast is a minority woman. Her experience and character is prima facia evidence of her qualifications. Her actions are assumed to be good.

In the end, Obama and indeed the entire hard left is suspect of white men. White men are considered an inferior species that can occasionally overcome their white maleness. This is what Sotomayer was saying in the infamous speech. She talks about the white men on the Supreme Court in Brown as an exception. Those men are a credit to their race but not indictitive of it.

|6.3.09 @ 11:03AM|#

The whole "strict constructionist" vs. "activist" judge thing is as far as I can tell nothing more than code words for "politically conservative" vs. "politically liberal." There is no evidence that judges conservatives like are stricter interpreters of the constitution. And the notion that judges don't, in effect, make policy (where precedent or clear applications of law are absent) is ridiculous.

Brandon|6.3.09 @ 11:04AM|#

Understood and applied might not be the same thing. For example, the understanding of the words "equal protection of law" when they were written down would strike down racial preferences, but almost certainly the writers of those words didn't expect that would be how they would be applied (these were the same Congresses who passed all the Reconstruction programs aimed explicitly at helping blacks).

You're right. "As they would have been applied" means you read into the author's intent. "As they would have been understood" means you just use the word's commonly understood definition. I shouldn't have mixed the two. The latter is the one I'm trying to defend. And even then it involves some hocus pocus, as the 8th amendment example makes clear.

But I think it's still preferable to judges having free reign to decide how exactly "cruel and unusual punishment" has changed from then to now. If hanging wasn't cruel in 1790 but is in 2009, amend the Constitution to prohibit hanging.

MNG|6.3.09 @ 11:04AM|#

"Now he tells us character and experience is all that matters."

He said that? And secondly you are making an equivocation (exerpeince in one sense meaning "experience as a judge and lawyer" and in the second sense "life experience")

"She talks about the white men on the Supreme Court in Brown as an exception."

I read the speech and that's not how I took it. She was speaking of the connection of ethnic/gender identity to decisions and appeared to be arguing both sides, pointing to the Brown case as evidence of the side that identity can certainly be said to not matter sometimes.

|6.3.09 @ 11:05AM|#

"There is no evidence that judges conservatives like are stricter interpreters of the constitution."

How do you explain the Epstein opinion not applying Heller to the States then? Epstein is a darling of the right.

|6.3.09 @ 11:07AM|#

"He said that? And secondly you are making an equivocation (exerpeince in one sense meaning "experience as a judge and lawyer" and in the second sense "life experience")"

Her life story and character seem to be the most important factors Obama had in chosing her. But Roberts and Alito's life stories didn't seem to count for much. Also, their admittedly good character didn't count for anything. With Sotomayer her life experience and good character counted for everything.

|6.3.09 @ 11:09AM|#

"She was speaking of the connection of ethnic/gender identity to decisions and appeared to be arguing both sides, pointing to the Brown case as evidence of the side that identity can certainly be said to not matter sometimes."

If that is true, then she is an idiot who can't make a coherent argument. Considering her background, that seems very unlikly. So, you have to go with the assumption that this is a smart woman making a coherent point. Given that, the only way to reconcile the the "wise Latina" statement with the sentence about the Supreme Court is that she was saying that the Brown Court made the right decision in spite of being white men.

GG|6.3.09 @ 11:10AM|#

Tony | June 3, 2009, 11:03am
The whole "strict constructionist" vs. "activist" judge thing

One man's "strict constructionist" is another man's judicial "activist."

MNG|6.3.09 @ 11:11AM|#

"But I think it's still preferable to judges having free reign to decide how exactly "cruel and unusual punishment" has changed from then to now."

I sort of agree. I am worried about judicial power, because it is quite undemocratic. Something needs to reign it in. But I'm not sure pointing to the historical "meaning" of phrases and words gets us very far because of the reason I talked of above (the Founders didn't strike me as the kind who would have wanted their understanding of certain broad and changeable concepts to become the strict limits on our application of such concepts). Additionally, since history is way over there and we are way over here it will often not be clear how the words and phrases were actually understood back in their day (look at Heller where both sides engaged in and marshalled extensive historical arguments and points).

Perhaps the concepts themselves are the only limits we can ask for. I mean, me, TAO, J sud D and you probably disagree about what is cruel or unusual, but I bet we disagree around the edges and that a great deal of agreement exists as well, and even where we do disagree we will appeal to the more common understandings of the concepts we share. I mean, there are limits as to what can be considered cruel or unusual. Maybe that is the best we can do? We do have an Amendment process to correct any reading that seems out of step with the public enough...

Shannon Love|6.3.09 @ 11:12AM|#

I think that conservatives distrust leftist nominations on judges because they assume that the nominees are lying when the judges claim they won't engage in judicial activism. It's much the same dynamic as when everyone left or right assumes that Obama is lying when he says he opposes gay marriage on religious grounds.

From the late 1950s to the early 90's, leftist legal theorist explicitly argued for the right and responsibility of judges to impose their own sense of correct political policy via the power of the bench. Read Lawrence Tribe from back in the day to see the argument in its purest form. They only reversed this stand after the 12 years of Republican Presidents altered the composition of the court. It's not entirely unreasonable to assume that someone like Sotomayor who was educated in this school of thought will carry it's doctrines into the Supreme Court.

Of course, we should be evaluating each judge as an individual and look at the body of their actual decisions instead of making sweeping assumptions based on ideology. However, it's a little late for leftist to be complaining about stereotyping in the judicial nominating process because they essentially invented the practice.

MNG|6.3.09 @ 11:13AM|#

"Her life story and character seem to be the most important factors Obama had in chosing her."

That absurd. Surely he also agreed with most of her jurisprudence, I mean, he didn't pick or consider Janice Rogers Brown I imagine...

Yes, he wanted an ethnic female, and yes I find that stupid, but he certainly wanted an ethnic female with certain views and rulings. Ones without the latter were not even considered.

|6.3.09 @ 11:14AM|#

But I think it's still preferable to judges having free reign to decide how exactly "cruel and unusual punishment" has changed from then to now.

If the authors of the 8th amendment wanted to delineate which forms of punishment were unacceptable, they would have done so. Instead they preferred vague language that obviously could be reinterpreted as society evolves. If everything could be determined by adherence to rote language we wouldn't need judges in the first place.

|6.3.09 @ 11:14AM|#

Of course there are silly people playing politics. It happens with all nominations.

Luckily, Republican Senators are much better than their extreme partisans. They're also much more reasonable people than President Obama as a Senator when it comes to confirmations.

For some reason, Democrats can vote en masse against nominees, whether Supreme Court or Circuit Court, for their personal story and supposed lack of empathy, for trumped-up charges, for just plain ideology (like Senator Obama), for writing law review articles, for smoking pot (Douglas Ginsburg), or for possible agreeing with libertarians like Epstein on takings, and no problem.

But Republicans vote overwhelmingly to confirm Democratic Supreme Court nominees, reject fewer court nominations, don't filibuster Circuit Court nominees, and even as President renominate previously stalled nominations (GWB) or come to compromise agreements to let the other party nominate a few (GHWB and Moynihan and Sotomayor's original appointment), and they're the crazy ones.

In fact, any compromise and/or vote for a Democratic nominee by Republicans is taken as evidence that the Democratic nominees could not possibly be extreme, whereas the very fact of Democratic opposition to Republican nominees is taken as evidence of extremism.

There's stupidity on all sides. Stupid opposition to Sotomayor isn't limited to conservatives, either. There are stupid crazy libertarians out there too who have made ridiculous accusations that no conservative Senator has made. Any political side has its crazies.

|6.3.09 @ 11:16AM|#

"That absurd. Surely he also agreed with most of her jurisprudence, I mean, he didn't pick or consider Janice Rogers Brown I imagine...

Yes, he wanted an ethnic female, and yes I find that stupid, but he certainly wanted an ethnic female with certain views and rulings. Ones without the latter were not even considered."

You admit he wanted an ethnic female. Sotomayor is qualified but there are tons of people out there who are just as or more qualified than her and are reliably liberal. Why her? Why an ethnic female? Why not a good liberal white male? Its not like there are not plenty of them. Because their life experience is automatically inferior to a minority's.

|6.3.09 @ 11:16AM|#

Yes, he wanted an ethnic female, and yes I find that stupid, but he certainly wanted an ethnic female with certain views and rulings. Ones without the latter were not even considered.

Certainly true. Of course, white males were not even considered either.

But ethnic politics is the name of the game with Supreme Court nominations. Even if you personally don't agree with it, and even if most people don't agree with it, if a small number of people would vote on that basis it can be worth doing.

|6.3.09 @ 11:18AM|#

John Thacker,

I agree with you completely. But the only way to get the left to knock it off and clean up the discourse about nominations is to finally stick it to a liberal nominee. It is like the independent counsel law. Liberals loved that law until it was used on them. Sadly, power is the only thing those people understand.

MNG|6.3.09 @ 11:22AM|#

"Given that, the only way to reconcile the the "wise Latina" statement"

John, John...

Here is the quote: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

If she had not had the part in there about the richness of experiences and the hasn't lived that life and the I hope then I would be likely to agree with you. But those are pretty big qualifiers.

If I said "I would hope that a white man with a richness of experiences would more often than not reach a better conclusion than a black woman who lived an uninteresting and dull life" then I don't think that would be very racist either.

And then if I pointed to how black women had produced great decisions later in the same talk, then it would be even harder to see my comments as racist.

The Angry Optimist|6.3.09 @ 11:22AM|#

There are stupid crazy libertarians out there too who have made ridiculous accusations that no conservative Senator has made.

Like what? And it seems an unfair standard to state that there are libertarians who are crazy, because they say things conservative Senators don't say.

The Angry Optimist|6.3.09 @ 11:24AM|#

MNG, not to bust you out, but:

"I would hope that a wise Latina woman with the richness of her experiences"

and:

"I would hope that a white man with a richness of experiences"

Are not the same sentence. In the former, it is presumed that one from a minority group has richer experiences. In yours, you are stating that the white male must come with "a richness".

MNG|6.3.09 @ 11:25AM|#

If her experiences and identity were the only thing, or most important thing, then he would have considerd Janice Brown. But he didn't, because the first thing was judicial views.

What he did seems pretty clear to me: He had a stratified sample. First, he took all people with judicial views he agreed with. Then, within those he obviously asked for certain qualifications. Then of those he said, get me an ethnic woman.

That last step was politically wise but intellectually stupid imo, but hey, that's the SCOTUS...

|6.3.09 @ 11:26AM|#

Presidents republican and democratic alike have considered identity in supreme court nominations. It is not racist to do so. It is a) good politics and b) recognizing that having 9 white males deciding things that affect all Americans, no matter how qualified they are, is perhaps less than pragmatic in a society composed of many other types of people.

What is racist is the sentiment behind:

Why not a good liberal white male?

That is, the assumption that her being a hispanic female means she can't possibly be as competent as a theoretical white male.

MNG|6.3.09 @ 11:27AM|#

TAO
You're right, they are not exact same thing. I'm not sure the words she chose have to mean what you say though, or that if they do that's what she thinks, because yeah that's just stupid. There are certainly Latina women with poor experiences relative to many a white males...

MNG|6.3.09 @ 11:30AM|#

Tony
I'm as pissed off as you that in a nation that is 50% women and about 25% minorities we have only one woman and one minority on the bench. It surely indicates that things have not opened up for those groups yet.

However, it strikes me that the best way to address that is to enact programs that lead us to the goal of having 50% and 25% of the best, most accomplished judges/legal thinkers in the land be women and minorities rather than just picking women and minorities until they are 50 and 25% of the judges...

The Angry Optimist|6.3.09 @ 11:31AM|#

well, the full speech seems to indicate that is probably what she thinks. Which, while offensive to me, doesn't surprise me. Being steeped in 70s racial politics can make one think that they are enlightened.

Tony, you should take a cue from MNG and realize that Obama really missed an opportunity here.

|6.3.09 @ 11:35AM|#

Tony, you should take a cue from MNG and realize that Obama really missed an opportunity here.

What opportunity? The opportunity to have a nominee bashed even more from the right over overtly liberal views? And from women and hispanics for not getting more long-overdue representation on the court?

|6.3.09 @ 11:37AM|#

Does anyone know if Buchanan has played the illegal immigrant card yet?

|6.3.09 @ 11:39AM|#

I mean Republicans (those who have reelection to consider) have tried to douse the "she's a racist" rhetoric in favor of their tried-and-true "she may be a judicial activist" line. They would have used that on anybody Obama would have nominated, but at least with Sotomayor they don't have anything to back the claim up.

|6.3.09 @ 11:39AM|#

"It is not racist to do so. It is a) good politics and b) recognizing that having 9 white males deciding things that affect all Americans, no matter how qualified they are, is perhaps less than pragmatic in a society composed of many other types of people."

I guess that is why Liberals were all for putting Clarence Thomas, someone who grew up poor and black in the 1960s South on the Court right? I guess then they really messed up when they refused to give Miquel Estrada a vote for the DC Circuit because they feared he would get a Supreme Court appointment. Right? They really wanted diversity didn't they.

That is a complete lie Tony and you know it. You don't beleive that.

hand|6.3.09 @ 11:40AM|#

neither of those articles deals with the things that make me uncomfortable with sotomayor. i am uncomfortable because she questions the virtue of impartiality, and suggests that other models may be preferable. that's not justice.

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others.

|6.3.09 @ 11:41AM|#

"They would have used that on anybody Obama would have nominated, but at least with Sotomayor they don't have anything to back the claim up."

They have her wise latina speech and the fact that she went out of her way to fuck a bunch of white fire fighters in New Haven is pretty good evidence. Your statement assumes there could never be any evidence of racism in a minority. That is bullshit. There are lots of racist minorities out there. I don't know if Sotomayor is, but she certainly invited the charge.

The Angry Optimist|6.3.09 @ 11:41AM|#

Partial credit. Someone more liberal certainly still would have been confirmed: history tells us that the Republicans don't put much of a fight when it comes to judicial nominations.

But, more importantly, Obama could have taken the long view of the Supreme Court. Likely, the only "side" he's going to get to replace are the liberals, even if he gets eight years. Scalia's the only conservative at risk of health problems, and he's spiteful enough that he'll live on hate until January 20th, 2017. Anyway, the reason that Scalia has such influence on the Court is that he writes sharp, clean, well-written and well-resourced opinions. They are also funny. His influence outweighs the influence of your average Associate Justice (how many people do you think are going to be quoting David Souter in ten years?).

Anyway, the fact remains is that a solid, widely-read and quotable writer would have done way more for the liberal cause than straightforward ol' Sotomayor.

|6.3.09 @ 11:42AM|#

Hand,

You are right. That is an awful statement. We can never be impartial? We should never even try to be? What she is saying is that we should embrace our tribalism and give up all pretenses of being impartial, which is a pretty lousy way to run a society.

shecky|6.3.09 @ 11:44AM|#

Julian Sanchez:
"They really have no idea how they sound to anyone else."

Hit & Run regulars:
"Blah Blah Blah... I can't hear you..."

Yokeltarians strike (out) again!

|6.3.09 @ 11:44AM|#

Scalia's the only conservative at risk of health problems, and he's spiteful enough that he'll live on hate until January 20th, 2017.

Bravo, sir.


P.S. Any replies to this comment will most likely consist of ad homs, as libertarians concede my points and show their childish, anti-intellectual nature.

|6.3.09 @ 11:48AM|#

Yokeltarians

That's cute, shrike. Did you make that one up yourself? I bet you have a whole backlog of hilarious puns just like that one for our general entertainment. Enlighten us with a few more gems, shrike... let us gather them as if they were precious rubies falling from your lips.

|6.3.09 @ 11:49AM|#

I guess that is why Liberals were all for putting Clarence Thomas, someone who grew up poor and black in the 1960s South on the Court right? I guess then they really messed up when they refused to give Miquel Estrada a vote for the DC Circuit because they feared he would get a Supreme Court appointment. Right? They really wanted diversity didn't they.

That is a complete lie Tony and you know it. You don't beleive that.

So who's the one considering skin color above all else now? Because liberals are sensitive to diversity that means any minority deserves their full support regardless of qualifications or political views? The whole point here is that Sotomayor's race and sex are at most secondary to more important considerations, but also that they are not totally unimportant. Is that too sophisticated for you?

I mean I really can't figure out what you're getting at. You'd be the first to condemn liberals for being blind to everything but someone's minority status. Yet when they consider things before they consider race, such as a political threshold that Thomas and Estrada don't pass, you still bitch.

The Angry Optimist|6.3.09 @ 11:51AM|#

That's cute, shrike. Did you make that one up yourself?

I want it on the record that *I* am the one who first said the term "yokeltarian".

And it was in reference to the nutball racist loons and the Lew Rockwell crowd. shecky's abuse of the term borders on copyright infringement (and it's stupid to boot).

EJM|6.3.09 @ 11:55AM|#

Does anyone know if Buchanan has played the illegal immigrant card yet?

Arugably, he has...

It was Richard Nixon who brought the white working class, North and South, into his New Majority, when he increased the Republican presidential vote from 43 percent in 1968 to 61 percent in 1972. Ronald Reagan solidified this base.

But why should the white working and middle class stay with the GOP? Its presidents exported their jobs to Mexico, China and Asia, and threw open America's doors to tens of millions, legal and illegal, from the Third World, who have swamped their cities and towns. If the GOP will not end race-based affirmative action, which threatens the futures of their children, why vote for the GOP?

Why should white folks vote for anyone who says, "We are against race discrimination, unless it is discrimination against you"?

(Ironically, I found it while reading Mr. Navarrette's latest column.)

|6.3.09 @ 11:55AM|#

They have her wise latina speech and the fact that she went out of her way to fuck a bunch of white fire fighters in New Haven is pretty good evidence.

Actually Sotomayor sided with the unanimous majority to uphold the district court's ruling in the case, initially without opinion.

The Ricci case illustrates a contradiction on the right. Her decision is the very definition of sticking to the law as written and judicial restraint. YOU want her to be a judicial activist by going against the law as written because you feel sympathy for the poor white man who got discriminated against.

The Angry Optimist|6.3.09 @ 11:56AM|#

oops, wait, I wasn't the one who came up with "yokeltarian". It was Jake Boone who did so. And it wasn't on H+R, either. I was just the one who was cited as having an obsession with Ron Paul's yokely followers.

|6.3.09 @ 11:56AM|#

Oops. Sorry, shecky. That was such a useless and vacuous comment, I saw the "sh" and just figured it was from shrike. Totally my bad.

|6.3.09 @ 12:04PM|#

EJM

Its funny how Buchanan no longer even tries to hide his racism and anti-semitism. When it comes to race issues Buchanan has much of a leg to stand on as Nancy Pelosi does on taxes.

Citizen Nothing|6.3.09 @ 12:09PM|#

Glad you came clean, TAO. (First use seems to have been on Jan 10, 2008 on Grylliade.org, for any interested lexicographers. Yeah, I've got a little time on my hands this morning.)

|6.3.09 @ 12:09PM|#

And John, Sotomayor has most often sided against minorities in affirmative action cases. The fewer times where she has sided with minorities were always in unanimous opinions. But you conveniently ignore that history in favor of parroting a flimsy rightwing punditocracy talking point.

Elemenope|6.3.09 @ 12:23PM|#

Almost sounds like what liberals say about Clarence Thomas. Look it sucks to be accused of being a racist in public. But that is what liberals have been doing for years. Judge Pickering, a guy who once risked his life and career to testify against a grand wizard of the KKK in 1967 in Mississippi, was denied a spot on a circuit court because liberals accused him of being a racist.

Pickering left the Democratic party in protest in 1964 because Johnson connived to seat two civil rights activists at the DNC. He *was* a racist, and a segregationist.

Nice hand waving, though.

The Sotomayer[sic] nomination can result in some good things. Republicans need to go after Sotomayer[sic] and make liberals go on record admitting that what happened to Bork, Miguel Estrada and Pickering was disgusting and wrong. That way they lose the ability to engage in such shenanigans in the future.

Bork's participation in Watergate, re: the Saturday Night Massacre, rendered him ethically unfit for the position. We already covered Pickering.

I'll give you Estrada; that was a shame.

The Angry Optimist|6.3.09 @ 12:27PM|#

I'm curious: are the same people defending "politics as usual" behavior in this regard the same ones who got their panties in a bunch about Bush's Justice Department?

MNG|6.3.09 @ 12:33PM|#

TAO
Come on, the attorney firings and replacement were thought to involve the conscious dismissal of people and their replacement in order to avoid the bringing of certain actions (against Republicans) and to encourage the bringing of other actions (against Democratic officials). That's pretty far from "trying to secure certain voting blocs by picking a nominee with certain characterstics." A pretty big equivocation on the term "politics as usual"...

|6.3.09 @ 12:35PM|#

Illegal political interference with the DOJ...for freedom!

MNG|6.3.09 @ 12:42PM|#

I mean, that's like saying that running negative ads and soliciting illegal campaign funds are equivalent "politics as usual" to be upset about...

A better analogy would be to call on the people who complained about McCain picking Palin as running mate just to win women voters, what do they now think of Obama making a pick that is aimed to do the same thing?

|6.3.09 @ 12:47PM|#

Her [Ricci] decision is the very definition of sticking to the law as written and judicial restraint.

No, her one-paragraph dismissal of the case is regarded as jaw-droppingly inadequate, as it did not address any of the issues raised on appeal. I believe nine of her colleagues signed an opinion stating their disagreement with what she did.

Its possible that dismissal was justified on the merits, but she didn't address the merits.

Zeb|6.3.09 @ 12:47PM|#

"we have only one woman and one minority on the bench"

Really? Jews are a minority. Italians are a minority. I think you meant "non-white-person".

Calling an individual a minority is pretty silly in any case. Each individual person is necessarily a very tiny minority of the population, no?

|6.3.09 @ 12:50PM|#

"Pickering left the Democratic party in protest in 1964 because Johnson connived to seat two civil rights activists at the DNC. He *was* a racist, and a segregationist."

Black leaders in Missisipi supported his nomination. He was not a racist.

"Bork's participation in Watergate, re: the Saturday Night Massacre, rendered him ethically unfit for the position. We already covered Pickering."

If that had been why they turned him down, you migh thave a point. But it wasn't so you don't. They smeared him as a segregationist and a racist.

Nice that you will give me Estrada. Too bad you don't give a shit enough about it to hold it against he people who did it.

|6.3.09 @ 12:51PM|#

"Its possible that dismissal was justified on the merits, but she didn't address the merits."

She didn't because she didn't want them to get the opportunity to be heard before the Supreme Court. She really had it out for the plaintiffs in that case.

Hambone|6.3.09 @ 12:53PM|#

"The whole "strict constructionist" vs. "activist" judge thing is as far as I can tell nothing more than code words for "politically conservative" vs. "politically liberal.""

It takes courage to publicly display one's stupidity. I salute you!

Hambone|6.3.09 @ 12:58PM|#

"Her life story and character seem to be the most important factors Obama had in chosing her."

Which would make Clarence Thomas, one of the greatest picks ever. His story is far more humble than Sotomayor's.

And yet Obama told that Saddleback guy that he wouldn't have nominated Thomas.

Go figure.

wingnutx|6.3.09 @ 1:05PM|#

So it is perfectly within the bounds of politics, as it is currently played, to tar her with being a racist and affirmative action baby.

It may be within bounds, but it only really works when liberals do it.

Conservatives on either side of the issue are seen as conforming to their stereotype.

Dave|6.3.09 @ 1:06PM|#

a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences ...


And this is the problem with affirmative action. It is precisely because we give special preferences to certain minorities that it becomes credible to believe that individuals in those minorities received undue benefits--that's the point! We cannot assume that any particular individual achieved his position solely because of the benefit, but the application of such policies to some casts doubt upon the achievements of all.

Hambone|6.3.09 @ 1:07PM|#

"Then of those he said, get me an ethnic woman."

You left off "who has paid her taxes.

|6.3.09 @ 1:08PM|#

My prediction on Ricci at SCOTUS:

Given the per curiam opinion in front of them, it will be remanded for consideration of the issues raised by the appellants.

Then, it will come back up with Sotomayor on the court, and she will author a SCOTUS per curiam dismissing the case.

|6.3.09 @ 1:09PM|#

No kidding, Dave. If I were a high-achieving minority, I'd be pissed as hell about affirmative action, because it devalues what I have accomplished.

Hambone|6.3.09 @ 1:10PM|#

"You're right, they are not exact same thing. I'm not sure the words she chose have to mean what you say though, or that if they do that's what she thinks"

She was throwing red meet to a gathering of La Raza, people.

That is all.

Hambone|6.3.09 @ 1:12PM|#

"That is a complete lie Tony and you know it. You don't beleive that."

I think he really does.

|6.3.09 @ 1:13PM|#

"Then, it will come back up with Sotomayor on the court, and she will author a SCOTUS per curiam dismissing the case."

I don't think you can do that. She can't rehear a case she decided at a lower court. She would have to recuse herself.

Hambone|6.3.09 @ 1:16PM|#

"I mean I really can't figure out what you're getting at."

Again, I salute you!

JB|6.3.09 @ 1:24PM|#

Is Julian really that slow? That is the problem with affirmative action, you moron!

If affirmative action is in place, every person of every group who benefits is now suspect. Did they actually earn their place or were they given it through affirmative action?

That's the main way affirmative action does so much damage. Minorities are now viewed as less-qualified by default thanks to affirmative action.

The Angry Optimist|6.3.09 @ 1:30PM|#

Yes, she will have to recuse herself.

MNG - my broader point is that we (rightly) think that the DOJ should have the "best people" in it, regardless of their politics. OTOH, everyone seems fine with the fact that Sotomayor reaches the minimum requirements and past that, politics is ALL GOOD.

Hambone|6.3.09 @ 1:32PM|#

A new Quinnipiac poll shows:

American voters say 55 - 36 percent that affirmative action should be abolished, and disagree 71 - 19 percent with Supreme Court nominee Sonia Sotomayer's ruling in the New Haven firefighters' case, according to a Quinnipiac University poll released today.

http://www.quinnipiac.edu/x1295.xml?ReleaseID=1307

EJM|6.3.09 @ 1:40PM|#

Its funny how Buchanan no longer even tries to hide his racism and anti-semitism. When it comes to race issues Buchanan has much of a leg to stand on as Nancy Pelosi does on taxes.

FWIW, I just stumbled across some related Pat wackiness here.

|6.3.09 @ 2:30PM|#

EJM

Yea I read that on Newsvine yesterday. Buchanan is such a douchebag its not even funny, althought its funny how him and many Paleoconservatives still cling on to their Cold War paranioa.

|6.3.09 @ 2:32PM|#

I wonder if the average Americans polled have any appreciation of the particulars of the Ricci case or if they're just reacting the way John does to it: Poor white guy treated unfairly.

Just say what you mean. Law be damned, this was unfair. You want judicial activism based on your sympathy with the plaintiff.

|6.3.09 @ 2:37PM|#

I believe nine of her colleagues signed an opinion stating their disagreement with what she did.

You know, I thought I read this somewhere, but can't find any substantiation. Pls. withdraw.

You want judicial activism based on your sympathy with the plaintiff naive belief that equal protection of the laws means the law should protect everyone equally.

|6.3.09 @ 2:43PM|#

The fact that you're even talking about the Ricci case instead of all those other affirmative action cases in which she sided with the white guys means you're not doing your homework and letting partisan pundits do your thinking for you. If Ricci were so cut-and-dried it wouldn't be at the supreme court right now.

|6.3.09 @ 2:44PM|#

Here is the quote: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

If I said "I would hope that a white man with a richness of experiences would more often than not reach a better conclusion than a black woman who lived an uninteresting and dull life" then I don't think that would be very racist either.

Actually, I think partisan leftists would jump all over that statement, saying the nominee thought that black women lived uninteresting and dull lives.

But, that's not what Sotomayor fucking SAID, MNG. Switch her exact words around, and tell me this wouldn't be accurately construed as racist if said by a white male nominee:

"I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a latino or female who hasn't lived that life."

Liberals would Bork any white male SCOTUS nominee who said that.

MNG|6.3.09 @ 2:47PM|#

But that is hardly the "original intent" or understanding of that language. The folks who brought you the Equal Protection Clause also brought us many programs explicitly to help blacks during Reconstruction. They certainly did not think it meant barring that kind of thing.

I will agree with Tony on this one: it's kinda goofy to condemn Sotomayer as some activist who craps on the original intent of the legislatures and then in the same breath condemn her for Ricci.

MNG|6.3.09 @ 2:50PM|#

Actually I'd want to hear how it was delivered, as there strikes me as a difference between:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life"

And

"I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life."

Because then it strikes me that the "with" part is supposed to mean "taken with or alongside" as in "considered alongside the richness of her experiences..."

MNG|6.3.09 @ 2:52PM|#

"The NYT has a link to the entire speech in which she made the comment about the "wise Latina" reaching a "better" verdict than "a white male who hasn't lived that life." I'm still a bit troubled by the remark, but not in any important way. Taken in context, the speech was about how the context in which we were raised affects how judges see the world, and that it's unrealistic to pretend otherwise. Yet -- and this is a key point -- she admits that as a jurist, one is obligated to strive for neutrality. It seems to me that Judge Sotomayor in this speech dwelled on the inescapability of social context in shaping the character of a jurist. That doesn't seem to me to be a controversial point, and I am relieved by this passage:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.
Relieved, because it strikes me as both idealistic and realistic. I am sure Sotomayor and I have very different views on the justice, or injustice, of affirmative action, and I'm quite sure that I won't much care for her rulings as a SCOTUS justice on issues that I care about. But seeing her controversial comment in its larger context makes it look a lot less provocative and troubling. As some of you have noted in comments."

|6.3.09 @ 2:58PM|#

It's not a big deal, and the fact that we're still talking about it means Sotomayor must be a very boring, even-handed judge indeed. Can't the right find something better to go into hysterics about?

|6.3.09 @ 3:02PM|#

"I wonder if the average Americans polled have any appreciation of the particulars of the Ricci case or if they're just reacting the way John does to it: Poor white guy treated unfairly."

Typical liberal perspective: The populace is teh stupid, but not me!

STFU Tony.

MNG|6.3.09 @ 3:06PM|#

I would hope that a bitter Latina woman with the bitterness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

In this sentence, have I ascribed bitterness to all Latina women? Or just a hypothetical individual one?

I'm not being sarcastic or tricky, I just couldn't get TAO's assertion about what the language must mean out of my head, and I tried it with other adjectives, and I'm not sure it means that...

Especially given that such a meaning might be (?) incongruent to this which she says later in the same speech: "I, like Professor Carter, believe that we 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."

The Angry Optimist|6.3.09 @ 3:08PM|#

In this sentence, have I ascribed bitterness to all Latina women? Or just a hypothetical individual one?

They are one and the same, MNG. If the hypothetical Latina woman has more "bitterness", then you must be ascribing that position to all Latinas on the basic of them being Latina.

|6.3.09 @ 3:15PM|#

I may be stupid but at least I've tried to understand what the hell I'm talking about regarding Ricci rather than just aping Pat Buchanan's racial resentment bullshit.

Of course I know libertarians would never question the wisdom of the masses.

|6.3.09 @ 3:16PM|#

With all the talk about Sonia Sotomayor's celebrated capacity for empathy and what it might mean for the law, I'm surprised that more attention has not focused on her 2001 ruling in Bartlett v. New York State Board of Law Examiners. The case held that a woman was entitled to double the normal amount of time on the bar exam - to become a licensed attorney in the state of New York - because she wasn't able to read very well. Or, as Judge Sotomayor put it, she was "substantially limited in the major life activity of reading when compared to most people by her slow reading rate and by the fatigue caused by her lack of automaticity."

The plaintiff in the case had graduated (barely) with a GPA of 2.32 from Vermont Law School, where she had received substantial accommodations for her professed learning disability. After this, she took and failed the New York bar exam three times. Apparently not believing that the fourth time would be the charm, she decided to sue under the Americans with Disabilities Act, alleging that the state Board of Law Examiners had "discriminated against her . . . by failing to provide her with reasonable accommodations" as required by the law.

Now you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker's lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a "reasonable accommodation." But that would be a decidedly unempathetic point of view. Such an attitude is in fact "invidious," according to Sotomayor's opinion.

At the end of the day, Sotomayor wrote, "plaintiff has convinced me that she needs extra time on tests in order for her true abilities and knowledge to be assessed." A lawyer's "true abilities," of course, are measured by what she is able to achieve when a judge orders that she be given twice the allotted time to complete a legal task. On the basis of this understanding, Sotomayor proceeded to award the plaintiff $7,500 in damages, and mandated that she be allowed four days to take the bar exam instead of the usual two. Thus buoyed by a gust of judicial empathy, the intrepid plaintiff took the test a fourth and final time. And failed it once again.

|6.3.09 @ 3:17PM|#

In United States v. Santa, Judge Sotomayor ruled that when police search a suspect based on a mistaken belief that there is a valid arrest warrant out on him, evidence found during the search should not be suppressed.

|6.3.09 @ 3:25PM|#

If nothing else I think we've established that EAP can copy and paste text from the National Review website.

The Angry Optimist|6.3.09 @ 3:28PM|#

In United States v. Falso, Sotomayor (writing for majority) stated that a violation of the Fourth Amendment did not warrant exclusion of the evidence found as a result of that violation, because the officers acted on "good faith" on the warrant.

|6.3.09 @ 3:34PM|#

"If nothing else I think we've established that EAP can copy and paste text from the National Review website."

Yeah? So what? It's accurate.

|6.3.09 @ 3:40PM|#

Actually I'd want to hear how it was delivered, as there strikes me as a difference between:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life"

And

"I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life."

So do you really think liberals wouldn't rip into and Bork a white male SCOTUS appointee who said this: ""I would hope that a wise white male, with the richness of his experiences, would more often than not reach a better conclusion than a latino or female who hasn't lived that life."

Because the added commas totally make it not racist or sexist, yeah?

/sarcasm

|6.3.09 @ 3:49PM|#

All they found in Bartlett was that her impairments qualified as disabilities under ADA (thus requiring special accommodations). Maybe that's judicial empathy gone awry; maybe Congress's law is overbroad. My position is that we shouldn't extrapolate some sort of political motive from judges' opinions unless they've demonstrated a clear pattern that goes outside reasonable interpretations of the law. If you can find such a pattern in Sotomayor's long career then lay it out, otherwise you're just cherry picking cases that go toward confirming your preconceptions about her.

The Magic Latina|6.3.09 @ 3:51PM|#

"Maybe that's judicial empathy gone awry"

Ya think???

|6.3.09 @ 4:34PM|#

"If you can find such a pattern in Sotomayor's long career then lay it out, otherwise you're just cherry picking cases that go toward confirming your preconceptions about her."


If you think there is a pattern that indicates that Phil Spector is a murderous lunatic who hates women, then go ahead and lay it out. Otherwise you are just cherry picking the one case where he did in fact kill a woman that goes to confirming your preconceptions about her.

Your version makes about as much sense as mine Tony. What are examples if not a pattern? Did she accidently rule in those cases?

|6.3.09 @ 4:39PM|#

John,

A pattern is not the same thing as examples. Especially not examples chosen precisely because they fit a narrative being advanced, and especially given her lengthy career.

I've already said that, if anything, her pattern on affirmative action cases tends to be against minorities. I wouldn't even go so far to accuse her of being anti-minority or anti-affirmative action as a result. But you're taking one or two cases (that differ from the norm!) and using them to advance a narrative that she's racist against whites.

Even though the analogy is absurd, I think Spector is a murderer. I don't have enough evidence to say whether he hates all women.

|6.3.09 @ 4:47PM|#

"I've already said that, if anything, her pattern on affirmative action cases tends to be against minorities."

Show us that pattern, Tony. Thank you in advance of your efforts.

|6.3.09 @ 5:17PM|#

From NBC's Pete Williams
An analysis of Judge Sonia Sotomayor's most recent appeals court decisions shows that nearly every time, she voted AGAINST people who were claiming illegal discrimination, according to a lawyer who appears frequently before the U.S. Supreme Court.

The analysis, done by DC lawyer Tom Goldstein for his legal website SCOTUSblog, looked at her court's 50 most recent cases involving the issue of race. He found that the three-judge panels on which she participated upheld claims of discrimination only three times. In 45 other cases, the discrimination claims were rejected. Each time, the judges -- including her -- were unanimous. And the three panels that upheld discrimination claims included at least one Republican-appointed judge.

Two other cases were decided on technical procedural grounds.

"It seems to me that these numbers decisively disprove the claim that she decides cases with any sort of racial bias," Goldstein says.

The Magic Latina|6.3.09 @ 5:23PM|#

If nothing else I think we've established that Tony can copy and paste text from the NBC website.

|6.3.09 @ 5:28PM|#

And give credit to the author!

|6.3.09 @ 8:26PM|#

tony-

Even though the analogy is absurd, I think Spector is a murderer. I don't have enough evidence to say whether he hates all women.

The analogy is perfect. I think Sotomayor is a racist- I just don't have enough evidence to say whether she hates all white people.

Becky Chandler|6.5.09 @ 5:53PM|#

What conservatives (and libertarians) should realize is that on one matter near and dear to their hearts Sotomayor has not, and probably will not engage in "judicial activism" and they won't like it--gun control.

She was on the panel (and joined in the majority opinion) in the Second Circuit which ruled that the Second Amendment does not apply to restrictions by the states and local governments--it only limits what the federal government can do.

Apparently, at least on this issue, Sotomayer is unwilling to go along with the Supreme Court created doctrine of incorporation--that at least some of the rights enumerated in the Bill of Rights are incorporated in the due process clause of the Fourteenth Amendment and therefor applicable to the states and local governmental subdivisions.http://tinyurl.com/okydjn

The court which conservatives love to hate--the Ninth has rule to the contrary--so it being a dispute between the circuits SCOTUS will most likely be hearing it--and perhaps the win in Heller will be more or less meaningless.