Tuesday, July 21, 2009

Cue Final Jeopardy Music

Richard Cohen offers up yet another column that makes you wonder how he got his job.... He expresses that Judge Sotomayor was qualified to be made Justice Sotomayor, but is perplexed as to why she was chosen from among other qualified candidates.
But she has no cause, unless it is not to make a mistake, and has no passion, unless it is not to show any, and lacks intellectual brilliance, unless it is disguised under a veil of soporific competence until she takes her seat on the court.
Yes, the brilliant Richard Cohen sees no evidence of cause or passion in the résumé of a former director of the Puerto Rican Legal Defense and Education Fund. But, you know, let's take him at face value. Cue the music...
  • What are the "causes" and "passions" of the other Justices presently serving on the Supreme Court?

  • Where and when has Richard Cohen praised their passionate, cause-driving lives, or criticised them for an apparent lack of passion or causes?

  • Same questions, but in relation to a lack of obvious brilliance, or in relation to Justices "hiding" their brilliance by being consistently competent?

As for competence being "soporific", what does Cohen think appellate judges do? He expects legal opinions to read like Harry Potter novels? I suspect he's in fact telling us about himself - that he tried to find evidence of bias in Sotomayor's opinions, but found the actual search for facts to be too boring, so he instead served us up a helping of his usual mind-slop.
In the meantime, Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past.
Cue the music: Which opinion columnist, named Richard Cohen, is widely considered to be intellectually shallow and to personify what ails the American left? (Did I give him a big enough hint?) I mean, seriously, this sort of ad hominem is fun, and all, but Cohen would be better served by leaving it to the likes of Ann Coulter. Case in point:
What, though, about a jurist who can advance the larger cause of civil rights and at the same time protect individual rights? This was the dilemma raised by the New Haven firefighters' case. The legal mind who could have found a "liberal" way out of the thicket would deserve a Supreme Court seat. As an appellate judge, Sotomayor did not even attempt such an exercise. She punted.
This is what. Cohen's seventieth1 column on the firefighter's case? And he's offered what, other than whininess, as a "'liberal' way out of the thicket"? In fairness, I suppose, he's not claiming that he deserves a Supreme Court seat, but it's a bit tiresome to have people like Cohen set as benchmarks for qualification tests they're woefully unprepared to meet themselves, while pretending to be competent to speak on the issue.
She was similarly disappointing on capital punishment. She seems to support it. Yet it is an abomination. It grants the government a right that it should never have, one that has been abused over the years by despots, potentates and racist cops. It is always an abuse of power, always an exercise in arrogance - it admits no possibility of a mistake - and totally without efficacy. It is not a deterrent, and it endorses the mentality of the killer: Human life is not inviolate.
Cue the music: Which Supreme Court Justice, at his or her confirmation hearings, expressed that the death penalty is unconstitutional? Where are Cohen's columns decrying the other nominees who did not?
Contrast her approach to this and other problems with what Antonin Scalia has done with issues close to his own heart. Where in all of Sotomayor's opinions, speeches and now testimony is there anything approaching Scalia's dissent in Morrison v. Olson, in which, alone, he not only found fault with the law creating special prosecutors but warned about how it would someday be abused?
Oh, that's cute. Cue the music:
  • How much of a factor have the opinions and dissents of Justices, not yet written and on cases they have not yet heard, played in past confirmation hearings?

  • What made Scalia's dissent legally correct, as opposed to according with Cohen's personal political views post-Kenneth Starr?

  • How consistent was Scalia in subsequent opinions during Clinton's Presidency, when he appeared happy to bless any lawsuit, investigation or other action against a sitting President - albeit one who he politically opposed?

What are the odds Cohen read any of those opinions....
My admiration for Scalia is constrained by the fact that I frequently believe him to be wrong. But his thinking is often fresh, his writing is often bracing; and, more to my point, he has no counterpart on the left. His liberal and moderate brethren wallow in bromides; they can sometimes outvote him, but they cannot outthink him.
Is Cohen speaking about the Justices he perceives as being on the "left" or is he speaking of himself? Where can I find Cohen's columns where he takes a decision in which Scalia is in the minority, with a majority decision written by a Justice from the "left" of the court, and explains how Scalia was wrong but that the majority opinion is flawed? Let alone one that describes how it was flawed? I can't, you say? How surprising....

Scalia's a smart man, and many regard him as the smartest member of the Supreme Court. But all Cohen's doing here is "drinking the Kool-Aid". He, himself, is wallowing in bromides, albeit bromides about Scalia. Can the columnist who admits that competent, well-reasoned legal opinions make him fall asleep really pretend he's competent to compare the performance of different Supreme Court Justices?2

Cue the music: Which of Scalia's opinions convinced Cohen that Scalia offers a fresh, bracing style of writing? (I know he singled out the dissent in Morrison v. Olson, but... have you read it? Has Cohen?)
The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F.Supp. 150, 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, [p700] see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id. at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S.C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two Branches to try "[c]ompromise and cooperation, rather than confrontation." 556 F.Supp. at 153. After further haggling, the two Branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents.
Wow... so fresh... so bracing. I feel like I'm crossing the Gulf of Mexico by sailboat, salty wind in my face....
This is the sad state of both liberalism and American politics. First-class legal brains are not even nominated lest some senator break into hives at the prospect of encountering a genuinely new idea. The ceiling is further lowered by the need to season the court with diversity, a wonderful idea as long as brilliance is not compromised. The result has been the rout of sexism: The women are as mediocre as the men.
Cue the music: Which female columnists for a major national newspaper are as consistently mediocre as Richard Cohen? When was the last time Cohen served up "a genuinely new idea"?
From all we know, Sotomayor is no Scalia. She is no Thurgood Marshall, either, or even a John Roberts, who is leading the court in his own direction.
Cue the music: What is the difference between an Associate Justice and a Chief Justice?
A million lawyers in America and something Jimmy Carter used to say comes to mind: Why not the best?
Cue the music:
  • When was the last time "the best" legal mind (or let's say, one of the top 100) was nominated to the Supreme Court?

  • When was the last time Richard Cohen cared?

I picture Cohen going home with the consolation prize....
1. If you need the explanation, yes, I sarcastically exaggerated the number of columns.

2. If you replied, "Yes, he can - right there, on the pages of the New York Times," touché.

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