5.28.2009

Bait and Switch? Sunstein for Sotomayor?

As I contemplated the growing mobilization of conservative opposition to Sonia Sotomayor's Supreme Court nomination, I had an interesting and worrisome thought: what if Sotomayor was a sacrificial lamb of the Obama administration, set out to satiate the GOP wolves, allowing someone Obama really wants to be nominated in the aftermath? What if this was all a ruse to get Cass Sunstein onto the court?

Because Obama will likely have at least one more nomination to make in his time in office, I didn't give much credence to my conspiracy theory. As I said a month ago,
With the imminent departure of Souter from the Supreme Court, Sunstein is also being discussed as a potential candidate. He has for months been my dark horse pick for one of Obama's nominations to the Court, but I don't think it will be now. To satisfy the race- and gender-based factions of his party, I predict Obama will pick a woman or a non-white first. Because of course the skin color or gender of a person means they will be more fair minded or some such nonsense.
However, it turns out I'm not the only one with sneaking suspicions about motives and aims of the current administration. Someone under the pen name M. Abramowitz at a blog I'd never heard of called The New Majority (a conservative blog edited by David Frum, trying to "fix" the Republican party with a toxic mix of religion and environmentalism, with a little limited government thrown in) wrote a post about the very bait and switch I was thinking of. Abramowitz comes up with some interesting ideas to ponder, suggesting that a "multi-actor repeated game" could describe what is going on.
First, by emphasizing empathy and by so conscientiously touting the judge’s biography, the President has assured the terms of the debate and radicalized his critics. ... The President has thus created a “heads I win, tails you lose,” scenario. Sotomayor will either be confirmed over the protests of those who diminish the relevance of her personal history, but who are heard by the masses as diminishing the history itself. Or she will be defeated or withdrawn, ...leaving the President the opportunity to choose perhaps a less biographically-impressive but more intellectually-formidable nominee.

This points to why the Sotomayor nomination makes sense in the context of a repeated game. Chances are the President will face two or three vacancies during his first term. And let’s say that he really wanted to nominate to the Court his close friend and now head of the Office of Information Affairs, Cass Sunstein... What would be the best strategy to get Sunstein on the court?

Would it be best to nominate him first, when interest groups, ginned up to oppose the first person down the pike, would comb Sunstein’s scholarly works for evidence of immoderation and turn the already hot Washington summer into a referendum on jurisprudence? Or would it be better for Obama to make a “biography pick” first, expose himself to the charge that he’s only interested in identity politics on the Court, and answer those critics when the second vacancy appears by nominating an ivory tower Jewish male? Resistance will nonetheless be fierce, but opponents will be in a weaker position for having shifted strategies, whereas the President will be in a stronger position by appearing to have addressed the previous concerns. [bold added]
I hope you'll forgive the long quotation, but I cut out as much as possible while leaving the core of the arguments in tact. This is a compelling line of reasoning, and not only apparently fits in with game theory -- of which I know little -- but also with the manipulative nudge and Alinsky-type strategies employed by the left.

Again, I have difficultly believing such Machiavellian tactics are actually being used, though I admit that I could be suffering from naivete. Still, Abramowitz's conclusion is worth noting whether or not this is all a grand conspiracy, for even if it isn't, the scenario could certainly fall out this way if the Republican attack dogs follow this trail:
Considering this context, the optimal strategy for conservatives most concerned about the eventual appointment of a Sunstein-like figure to the Court (and his likely far greater influence on the law than Judge Sotomayor) would be to avoid any debate about the relevance of her biography and keep their focus on competence, judicial experience (of which Sunstein has none) and jurisprudence. Doing so may be impossible in the current environment, for playing identity-politics, both on the Right and the Left, is a heck of a lot easier than debating judicial philosophy. [bold and italics added]
Now, taking a step back from this particular case, I'd like to point out that I find this perspective refreshing, especially from a conservative blog, because the author seems to recognize the intellectual bankruptcy of the right; namely that they likely won't be able to avoid the "he said, she said" of identity politics.

But his call to focus on jurisprudence begs the question: what is good jurisprudence? Does he fall into the Originalism camp with Scalia? This seems to be what conservatives tend towards, but as demonstrated by Tara Smith (see my two previous posts), the lure of Originalism is ultimately undercut by its lack of objectivity. As Smith wrote in the conclusion to her paper in a Duke law journal:
The appeal of Originalism rests primarily in its presenting itself as the champion of objectivity. It retains this appeal, despite incisive criticisms, because the alternatives seem wobbly in comparison, distinctly lacking in objectivity. And here, appearances are not deceiving: Each of them offers merely a different form of subjectivism. Originalism seems to provide the only refuge. Its professed objectivity is illusory, however. For Originalism mistakes the intrinsic for the objective. And because objective meaning does not, in fact, simply inhere within words, Originalism collapses into subjectivism, the very thing it means to overcome.

Obviously, the full and exact nature of objectivity is a huge subject in itself. I hope that my proposal that the reining theories of judicial interpretation offer two ends of a false dichotomy will stimulate further examination of objectivity in this context. Each side of the debate has the story partially right, detecting something that is defective in the other. ... Originalism has not died, in other words, because both sides labor under erroneous conceptions of objectivity. As long as we lack an accurate understanding of what the objective application of laws is, we cannot expect to have it -- which means that the rule of law and the protections it affords are precarious. Even well-intended interpreters trying to uphold the rule of law will not be in a position to do so.
I hope Smith continues this work to flesh out a new school of objective thought in Constitutional interpretation, or that other scholars take up her call for "further examination of objectivity in this context." Until then, "even well-intended" people like M. Abramowitz, in calling for a focus on competence and jurisprudence, will be on shaky and ultimately unsound footing, open to attacks from all sides.

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