Friday, May 29, 2009

Gibbs Walks Sotomayor Back into a Corner

White House Press Secretary Robert Gibbs today began the Obama Administration's walkback of controversial comments made by Supreme Court nominee Sonia Sotomayor. At today's press briefing, the perpetually over matched Gibbs attempted to explain away Sotomayor's comment that a "wise Latina" would necessarily make better judicial decisions than a "white male" judge because of her gender, ethnicity, and life experience. But Gibbs never learned the first rule of being in a hole, and his explanation raises more uncomfortable questions for the nominee.

"I think she’d say her word choice in 2001 was poor. She was simply making the point that experiences are relevant to the process of judging. Your personal experiences have a tendency to make you more aware of certain facts and certain cases, that your experiences impact your understanding."
The only facts that a judge has any business considering, of course, are the facts at issue in the case before the court. Gibbs' assertion is an admission that the Administration wants judges who will decide cases not based upon the facts and the law, but on their personal preferences.

But Gibbs wasn't done digging, and used a quote from Justice Samuel Alito to try and bolster his position.

"When a case comes before me involving, let's say, someone who is an immigrant...I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position…. I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’…When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

The obvious differences between Alito's quote and Sotomayor's, however, is that Alito did not assert that he was a better judge because of his family's experiences. Alito did not allege that because of his family's story that he would reach more just conclusions than a Latina woman. And Alito did not say that say that his decisions were based in part on his personal history. Sotomayor did all those things in her remarks.

President Obama also defended Sotomayor today, calling the criticism of her remarks, "nonsense." But the fact that the White House is talking about this, and trying to explain it away, proves that the controversy is anything bu nonsense. The Administration knows it could have a real problem with Sotomayor's nomination if it does not move to stem the growing backlash against her for those statements. Gibbs' botched defense is the first crack in the White House's management of Sotomayor's nomination.

Sotomayor a Perfect Liberal Activist Judge

Supreme Court nominee Sonia Sotomayor has been deservedly criticized for two of her public statements: one in which she labels herself a "wise Latina" and declares that her judgement is necessarily better than a "white male" judge because of her gender, ethnicity, and life experience; and another in which she says that "policy" is made in the courts. As shocking as the first sentiment is, at least it is honest. Likely, Judge Sotomayor really believes that her ability to judge cases is better than a man's. Her entry in the Almanac of the Federal Judiciary says that lawyers who have worked with and argued before believe Sotomayor has an "inflated opinion of herself."

Most of the criticism of her second statement has focused on the notion that courts should not make policy, as the nominee believes. But it is what Sotomayor said immediately after that reveals her to be a perfect liberal activist judge. Worse, she displays a willingness to be dishonest about what she believes a justice's role in the system should be for the sake of protecting her judicial future.

Sotomayor made the remarks at a Duke University Law School forum in response to a question about the difference between the federal district and appeals courts. Sotomayor said that the difference was that, "Court of Appeals is where policy is made." Immediately realizing her gaffe, Sotomayor attempted to walk back her remarks. But in so doing, she did not retract her statement. Rather, she merely tried to cover up the truth she just exposed; even acknowledging the radical nature of her beliefs with an awareness that they could come back to haunt her.
"Court of Appeals is where policy is made. And, I know, and I know that this is on tape and I should never say that. Because we don't 'make law,' I know. Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know."

What we know is that Sotomayor realized immediately that her words could jeopardize her chances at a Supreme Court nomination sometime in the future, so she does her best to restore the veil of secrecy she just tore down. But her tone of voice and gestures make clear that Sotomayor does not believe a word of what she is saying. The audience's laughter proves that the message was sent loud and clear. Every student at that forum walked out secure in the knowledge that Sotomayor believes courts should make policy, but that they should never talk about that publicly.

If Sotomayor really believes that her role as an unelected justice on the Supreme Court should be to decide policy questions, then that should be a topic of discussion in her confirmation hearings. But as her half-hearted cover-up shows, Sotomayor does not want to be as honest about her view of the Court's role as she does about how gender and ethnicity influence judicial ability. Like all liberal activists, Sotomayor wants to hide her true intentions behind politically correct rhetoric. In short, she is willing to lie to gain power, after which she will do as she pleases.

Thursday, May 28, 2009

Democrats and Sotomayor Have a Bolton Problem

Jeffrey Rosen, writing in The New Republic, highlights President Barack Obama's Supreme Court nominee Sonia Sotomayor's entry in the Almanac of the Federal Judiciary, which lists federal judges and rates them based upon the reviews of lawyers that have argued before or worked with each judge. Sotomayor, it seems, has a bad judicial temperament.
"Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like." [emphasis added]

Rosen had earlier reported on conversations he had with lawyers, clerks, and former judges on Sotomayor's Second Circuit, most of whom raised similar concerns about her fitness for the bench based on her "domineering" temperament and her "inflated opinion of herself." The almanac's entry confirms those observations.

The criticisms of Sotomayor by those who worked with her bear resemblance to those levelled at former U.N. Ambassador John Bolton during his confirmation hearings. Bolton was assailed by Senate Foreign Relations committee Democrats over allegations that he was a "bully" who routinely abused those in subordinate positions. The question of temperament was a key rationale used by Senate Democrats, and some Republican defectors, to deny the impeccably qualified Bolton confirmation.

Most legal scholars would agree that judicial temperament should be one of the most important factors in considering a nominee's fitness for the bench, along with experience and legal ability. Sotomayor's experience is not in doubt, although some have cast aspersions on her legal reasoning. Her temperament, on the other hand, falls well short of the standard expected in a Supreme Court Justice.

All judges must hear arguments dispassionately, and without regard to personal beliefs. That is especially true of the Supreme Court, where the weightiest of legal issues are decided with consequences for the entire nation. A justice cannot "attack" lawyers' arguments personally, must "understand their role" as adversaries advancing the interests of their clients, and cannot be "angry" and "excitable" on the bench. Based on the reviews of those who know best how she works, Sotomayor has not lived up to these standards.

Senate Democrats who voted against John Bolton for the U.N. ambassadorship based on concerns about his temperament cannot now justify their votes for Sotomayor, whose temperament has also been questioned. Her apparent lack of proper courtroom demeanor in deciding legal issues will certainly impact Americans more than any alleged lack of decorum exhibited by Bolton on the diplomatic front. When Democrats vote for her, they will be saying that Americans do not deserve a fair and dispassionate justice as much as foreign governments deserve a demure representative of U.S. national interests.

Tuesday, May 26, 2009

Obama's Supreme Distraction

President Barack Obama nominated Second Circuit appeals judge Sonia Sotomayor as his first nominee to the Supreme Court. Sotomayor, when she is confirmed, will become only the third woman and the first Hispanic to serve on the Court, replacing the retiring Justice David Souter. No word yet on the reaction from Pyongyang.

Pyongyang? Yes, Pyongyang. North Korea test fired not one, not two, not even three, but five new missiles yesterday and today in response to the United Nations Security Council's condemnation of its recent nuclear test. The two moves have sparked a new international nuclear crisis that has implications for Asia, the Middle East, and the United States. This is North Korea week in capitals around the globe from Tokyo, to Beijing, to Seoul, to London, Moscow, and even Tehran. But not in Washington. The Obama Administration's response is essentially to change the subject and distract media and public attention from the subject it does not want to talk about, foreign policy.

Saturday, May 23, 2009

New York Terror Cell Radicalized in Prison

Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders -- namely, highly secure prisons that ensure the public safety.
President Barack Obama, May 21, 2009

Authorities in New York have discovered that the four alleged terrorists arrested last week while planning to blow up a synagogue and shoot down a U.S. military plane were all converted to Islam while in prison. The four were attendees at a Newburgh, NY, mosque, where Imam Salahuddin Muhammad is the spiritual leader. Muhammad also serves as a Muslim prison chaplain.

The revelation comes just two days after President Obama uttered the words above, announcing his plan to bring some of the terrorist detainees currently held at Guantanamo Bay into the United States to be held in the U.S. prison system. The president assures that no one has ever escaped from one of the federal Supermax prisons. But as the case of the New York terror cell demonstrates, escape is not the only issue.

Friday, May 22, 2009

Big Speech, Small Man

It is fitting that President Barack Obama’s much-hyped and anticipated speech on his plan for the detainees currently held at Gunatanamo Bay was delivered in the rotunda of the National Archives building. Throughout his speech, the arguments of a petulant child stubbornly refusing to accept any responsibility for his actions could be heard echoing around the marble hall. The president’s speech was not courageous, uplifting, or forward looking. It was a small speech, especially in comparison to former vice president Dick Cheney’s address immediately after, and revealed the true stature of the man giving it.

President Obama is the master of the political trick of decrying a given act while engaging in it. Throughout this speech, Obama made overtures to looking ahead all the while dwelling on the past. He said he did not want to engage in re-fighting the battles of the last eight years over enhanced interrogations and Guantanamo Bay, then proceeded to do just that, explicitly and implicitly criticizing decisions of the Bush Administration as misguided, illegitimate, and “hasty.”

Of his own decisions to close the terrorist detention center at Guantanamo, the president offered no substantive defense, choosing instead to speak in platitudes and point fingers. His refusal to accept responsibility for his decision, and thus the consequences that may flow from it, was complete, and is best summarized by this passage.

“Indeed, the legal challenges that have sparked so much debate here in Washington in recent weeks would be taking place whether or not I decided to close Guantanamo. For example, the court order to release 17 Uighars – 17 Uighar detainees, took place last fall when George Bush was president. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican presidents – not wild-eyed liberals. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place.

President Obama offered no rationale for his decision other than the unprovable assertions that Guantanamo has served as a recruiting tool for terrorist groups, likely “creating more terrorists than it ever detained,” and that the facility’s existence has made the United States less, not more, safe. This is the presidential equivalent of pointing at another kid and yelling, “He made me do it!” when the teacher comes. It is not the act of a statesman, nor the argument of a man of stature. It is a dodge, a misdirection, a plea for avoiding the consequences of one’s actions.

At other points in the speech, President Obama presented half-truths and self-serving descriptions designed not to justify the closing of Guantanamo, but to cloud the issue enough in an effort to avoid responsibility for his decision. He took pains to detail the number of detainees released from Guantanamo versus the number convicted, but he did not allude to the reason for the relatively low conviction rate. Part of it certainly has to do with the efforts of “civil liberties” and “human rights” groups to tie the detentions of terrorists at the facility up in court. These are efforts that the president presumably would have supported, given his belief that the detentions were against American law. The effect is to paint a picture of a dysfunctional process for trying detainees, “a mess,” as he so eloquently called it, that only closing the facility can clean up. In truth, however, the mess is as much if not more a creation of the hysterical and unfounded claims and charges leveled against the Bush Administration’s plan for trying the detainees by some of President Obama’s biggest supporters.

In another willful distortion, President Obama insisted that the federal Supermax prisons can handle the detention of hardened terrorists, pointing out that no one has ever escaped from one of the maximum security facilities. But escape is not the issue. Security is. Bringing terrorists who were not already in America to America necessarily makes the country less safe. Housing terrorist detainees in the US makes the locality in which they are housed a terrorist target. This argument of Obama’s, which seeks to deny the reality of his decision, is like a child insisting he did not take the cookies, even as his face and hands are covered in chocolate. It is not accountable and it is not transparent.

President Obama’s address, like most of the rest of his speeches, was long on rhetorical flourish and short on actual details. It was internally contradictory – as when he said that the Bush Administration’s decision on indefinite detentions was wrong, only to announce that his own Administration would be adopting the same practice – self-serving, and petty. And that tells the listener something about the man who delivered it. President Obama showed in this address, more than he ever has, that he is a man of beautiful prose and little substance. Perhaps with more time in office, President Obama will acquire the knowledge and self-confidence that allowed Dick Cheney to deliver the statesman-like address that followed. Our president still has a lot of growing up to do.

Monday, May 18, 2009

Does Barack Obama Want Nancy Pelosi to Fail?

As the scandal over House Speaker Nancy Pelosi's and other top Congressional Democrats' bald-faced lies to the American people about what and when they knew of enhanced interrogation techniques enters its second week, questions are beginning to be raised about the Obama Administration's role in the release of information contradicting Pelosi's account of briefings she received. Specifically, inquiring minds are wondering whether the White House signed off on CIA Director Leon Panetta's internal agency memo responding to Pelosi's accusation that the CIA had misled Congress in its briefings on the techniques.

That question has been answered. The White House knew about the memo, and alerted Pelosi that it was going public.
"The Central Intelligence Agency gave House Speaker Nancy Pelosi, D-Calif., advanced warning before CIA Chief Leon Panetta sent a memo to employees at the spy agency that countered Pelosi's claim that the agency lied to Congress about waterboarding.

A CIA official, but not Panetta, made the call to Pelosi. [...]

The aide said Pelosi protested Panetta's memo on the call to no avail."
Now, new questions are raised. Pelosi must surely be wondering why a president of her own party is allowing the release of information that will make her look bad in the press; why he is remaining silent on the issue; and why he is taking no action to try and stem the feeding frenzy surrounding her.

White House Press Secretary Robert Gibbs was asked today whether President Obama had confidence in Pelosi as speaker. "He does," Gibbs answered, which could not have inspired much confidence in Pelosi since Obama has shown time and again that his confidence, like his promises, come with an expiration date. Usually that day comes sooner rather than later.

More than words, however, there are actions Obama could be taking to relieve some of the media pressure on Pelosi, who has gone into full backtrack and bunker mode after last week's torturous press conference. There are at least two guaranteed ways Obama could change the news cycle tomorrow, knocking Prevarigate™ off the evening news and relegating it to the inside pages of the newspapers: he could name a Supreme Court nominee to replace David Souter; and he could reverse himself and release the pictures showing the alleged abuse of prisoners in U.S. custody.

In the case of the Supreme Court, announcing a nominee would instantly change the news cycle to one of analysis of the president's pick, and the drama that is sure to surround his confirmation. The pictures would not change the news cycle. However, they would refocus the press on allegations of mistreatment of prisoners by U.S. soldiers under the Bush Administration. The Pelosi story - which let's be honest the press doesn't really want to report anyway - would pale in comparison to either of these and would give the Speaker the breathing room she is desperately seeking.

So why would the Obama Administration want to see Pelosi twist in the wind? To be sure, bare knuckles politics plays a role. There is no doubt a little of the White House showing Pelosi and Congress who is boss. But there is someone close to the president who may have a personal motive to see Nancy Pelosi laid low: Chief of Staff Rahm Emanuel.

Emanuel gave up his safe Congressional seat and a place in the leadership in the House to become White House Chief of Staff. But he has not given up on his dream of becoming Speaker. Furthermore, Pelosi, Emanuel's former boss, pulled a power play on him when he took the new position, reportedly letting Emanuel know in no uncertain terms that she was running the show on the hill and would have no input from him or the White House. Now it appears that the high-heel is on the other foot, and Emanuel may be advising President Obama to send an equally strong message up Pennsylvania Avenue.

No doubt, all is not sweetness and light for Speaker Nancy Pelosi right now. Some Republicans are beginning to call for her resignation as Speaker, although the leaderhship has not joined them, yet. The Obama Administration, led by the president himself, is not helping. Worse, the White House appears to be feeding the media frenzy by word and lack of action. Pelosi's fate may hang on how badly President Obama believes he needs her to shepherd his agenda through Congress, and whether she is willing to swallow her pride and give Rahm Emanuel a foot in the door of the House.