“Why would anyone think that Sotomayor doing her best Scalia impression would bring Kennedy to the left?”

New York Times legal correspondent Adam Liptak had an interesting piece yesterday arguing that through a combination of forceful questioning and writing, Justice Sonia Sotomayor is starting to emerge as the guiding force of the Supreme Court’s liberal wing. The Harlan Institute’s Josh Blackman explains why Liptak’s thesis doesn’t quite hold up:

The only thing that will shift the Court to the left (other than a retirement) is persuading Justice Kennedy to change his mind. Does anyone think Justice Sotomayor’s brusque questions at oral arguments and dissent from a denial of cert on a case that none of her colleagues found worthy of review on a claim that the court of appeals found “patently frivolous” will make any difference?

For the possible negative consequences of an aggressive Justice, look no further than Justice Scalia. Surely, Scalia’s rhetoric has done nothing to shift Kennedy, and previously O’Connor, to the right. If anything, it has pushed them away. President Bush did not even consider him for Chief for these reasons.

Why would anyone think that Sotomayor doing her best Scalia impression would bring Kennedy to the left? It could even have the unintended consequence of pushing him the other direction, especially with a tactful Chief Justice at the helm of One First Street assigning opinions.

Justice Kagan, and her suave, unassuming but persuasive temperament, may represent the Left’s last best hope to persuade Justice Kennedy on the key issues of the day.

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  • Jimbo||

    Could we get some alt-text on that photo, I'm ashamed to say that I'm not sure if that's Scalia or Sotomayor.

  • BakedPenguin||

    Jesus, Jimbo, get real.

    I mean, have you ever seen Sotomayor with glasses?

  • Fluffy||

    You know what? I hate this crap.

    In Sovietology, back when there was such a thing, great effort was put into attempting to analyze the Soviets based on frivolous (or apparently frivolous) elements of the personal relationships of the Politburo members. Who sat next to who at an event, who was in a photo at a parade, who got invited to a state dinner where Americans were present. That sort of thing.

    And you know what? The very fact that such analysis was possible, and beyond that necessary, spoke to the moral bankruptcy of the Soviet political system.

    It says a lot about the US that we've now reached that level - where we're trying to guess future political outcomes based on Sotomayor's and Roberts' tone of voice and court demeanor.

    I hate the idea of court packing, but I think we might benefit from increasing the number of justices up to, say, 100. Then at least we would move a couple of steps away from having to worry about what it says about the Court when Roberts farts at a meeting.

  • MNG||

    The Court plays a prominent role in the rule of our nation yet they are largely not accountable to the people, I think that counts for our obsession with how they may be leaning and why. I imagine people felt the same way about kings way back.

  • ||

    The caveat to that is they're not accountable to te theives that run our country either, so its a wash i'd say.

  • Fluffy||

    I think it goes a little beyond that.

    First, it speaks to how arbitrary the court's rulings have become.

    It should be possible to read the case law and look at a justice's prior votes and say, "This justice will vote this way on this upcoming case." If we can't do that, and have to instead perform analyses like, "Well, Kennedy doesn't like to be pushed, and that has undermined the Scalia faction so far, but now maybe he'll decide he doesn't like the angry Hispanic lady either" that is evidence that Kennedy is an arbitrary fuckwad whose rulings have no better basis than how his digestion is going that morning.

    I also think it speaks to the fact that the court's proceedings are marked by deception and a lack of transparency. The post-Bork politicization of the advise and consent process has put a premium on justices evading just about anything that could let you anticipate how they would rule on future cases (in a way that is related to but separate from my above point). That means we have nothing to go by but inference.

    And if you combine unaccountable power with arbitrariness and a lack of transparency, you get bad results.

  • ||

    The element that is missing here Fluffy is the idea that the other two branches of the government and the states also get a say in what the Constitution means. We have managed to make Constitutional interpretation the exclusive perview of the Court. So, you end up with crap like Bush II signing McCain Feingold even though he admitted he thought that it was unconsitutional. The implication being that the President doesn't get a say. Well, the President does. And so do the states. If we had a more balanced system, we wouldn't be doing Kremlinology on our robed overlords.

  • Anonymous Coward||

    It's because people regard the Court with an almost monarchial reverence. When is the last time a USSC justice was impeached? 1804.

  • Jerry||

    That the CO2 reduction plans by the EPA are unconstitutional?

  • West Texas||

    Thing is, it shouldn't be that hard to do what they do, at least when it comes to interpreting the constitutionality of laws, and there shouldn't be much question about how they decide things. Either it's in the rulebook or it's not.

    As the final decider in questions of law enforcement, there is undeniably an element of wisdom involved when arbitrating a dispute between two parties, but otherwise interpreting the Constitution and keeping a handle on Congress and the executive branch should be pretty simple.

    So I agree, Fluffy. It stinks rotten that we've gotten to this point.

  • ||

    Who could deny the wisdom of a latina?

  • MNG||

    I'm betting the whole notion of an aggressive Hispanic woman in a position of authority makes many conservatives very, very uncomfortable, much like the whole notion of a evangelical white woman with glasses as President makes a lot of liberals very, very uncomfortable...

  • ||

    Yeah, she might start yelling in spanish and hurling plateware at the other justices. Yep, conservatives are a-scared alright.

  • Fluffy||

    "Start"?

    I assumed she already did that.

  • J_L_B||

    You guys are thinking of this lady:

    http://www.youtube.com/watch?v.....re=related

  • Tim||

    For the possible negative consequences of an aggressive Justice, look no further than Justice Tammy Faye. Surely, Tammy’s streaked mascara rhetoric has done nothing to shift Kennedy, and previously O’Connor, to the right. If anything, it has pushed them away. President Bush did not even consider her for Chief for these reasons.

  • Angry Black Man||

    Hispanics make me feel uncomfortable too.

  • ||

    I think that has little to do with it. My first choice for the next Court vacancy is an aggressive black woman. And while she'd upset conservatives on some issues, being a libertarian, she'd be liked more than disliked by them, I imagine.

  • aggressive black women||

    So now you're saying we all look alike AND we're all libertarians?!?!?! That is racist, baby. Mm-hmmmm, racist!

  • ||

    If you are talking about the angry black woman I am thinking of (Janice Rogers Brown), she is not on the appellete court because Liberals like MNG have a serious problem with opinionated black people.

  • ||

    Yes, of course, that's the woman I was talking about. I'm not so sure she's angry or aggressive, but she's definitely One of Us. One of Us. One of Us.

  • ||

    That she was denied a seat on the circuit court was outragous. Flat out racism. Liberals didn't want to acknowledge that a black woman could be smart and anything but liberal.

  • MNG||

    " Liberals like MNG have a serious problem with opinionated black people."

    Yeah, it has nothing to do with her goofy ass jurisprudence...I mean, it's not like any white justices with similar views has been heavily resisted by the Dems. Oh wait, pretty much all of them have!

  • J_L_B||

    Except that the debate gets extremely heated with non-white candidates. Scalia and Thomas are very similar in their overall judicial philosophy, yet the left reverers Scalia, to certain degree, and outright hates Thomas. You can't stand non-white conservative justices because coloreds shouldn't think like that.

  • Apogee||

    Why do I get the feeling that 'goofy ass jurisprudence' is code for 'things I don't like'?

  • Mr. FIFY||

    We could've had Janice Rogers Brown on the SC, but Dems viewed her as one would upon finding a long-lost open can of sardines, so she isn't on the SC.

  • ||

    She will be. Oh yes, she will.

  • cynical||

    "I'm betting the whole notion of an aggressive Hispanic woman in a position of authority makes many conservatives very, very uncomfortable"

    Uncomfortable as in they don't want to suddenly stand up in company, or...?

  • Rock Action ||

    Only the New York Times' legal correspondent could use "suave" and "Elena Kagan" in the same sentence.

    Keerist.

  • AlmightyJB||

    I would agree that she could puch Kennedy the other way. Who wants to be on the same side as the crazy person?

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