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Political Theater: Republicans to Highlight “Empathy” in Sotomayor Hearings

Should we be surprised? Despite the GOP’s angry rants against “empathy” in judicial decisionmaking, the minority witness list reveals one star — Frank Ricci, the plaintiff/petitioner in Ricci v. DeStefano, the reversal of which GOP opinionmakers have desperately (and wrongly) spun as a stunning blow to Judge Sotomayor.

I have the utmost respect for Frank Ricci: he was the victim of a sort of ripsaw latent in Title VII, which the Supreme Court eventually resolved, rather poorly, but nonetheless in his favor. But because this was a very hard case, it’s wrong to spin him as a victim of judicial malice, and even more wrong to use him as a political prop in the GOP’s inconsistent & ill-conceived quest against Judge Sotomayor. Perhaps what Jeff Sessions, etc., meant to say is not that empathy is irrelevant to the process of judging, but that it’s only relevant when they can properly exploit it for political gain.

That Which Remains

There’s no disputing that the Republicans’ 2012 field has undergone something of an implosion. Until late June 2009, Mark Sanford seemed to personify the type of conservative Republicans would need to win the White House again – reasoned, well-mannered, not too tied up with immature antics like the “tea parties,” and reassuring. No more. And until just last week, Sarah Palin was the GOP’s culture warrior emeritus, a controversial choice for the ticket who, nonetheless, could rally the faithful like no-one else. Palin apologists notwithstanding, most now agree, that ship has sailed, too.

So who’s the beneficiary of this sudden purge? Tommy Christopher speculates half-jokingly on a moderate GOP hopeful waiting in the wings, annihilating the opposition with carefully calculated leaks. Most don’t think it’s that direct, but still say the implosion inures to Romney‘s benefit. I disagree.

To have a fighting chance in 2012, the GOP will need to field a fresh face, untarnished by the Bush years and, hopefully, with a solid record behind him. That rules out Romney. As popular as he remains in some GOP circles, he’s never really been trusted by the “movement,” contrary straw polls notwithstanding. You can only re-invent yourself so many times, and good ‘ol Mittens used them all last spring. Further, his firmly “establishment” credentials are more of a liability given the current state of the party. But if not Romney, who?

I’ll put my money on Tim Pawlenty. More moderate and less polarizing than most, Minnesota’s governor is exactly what Sarah Palin was supposed to be, but never could manage to pull off – a competent, moderate outsider. Spared the drama of the Franken/Coleman deathmatch, he’s been largely unfazed, too, by the disaster working its way through the Republican ranks. I’d worry. Especially because, at the end of the day, he’s still a creationist.

Sexist Stereotypes of Judge Sotomayor: Money

Over the last week, we’ve written more than a few things about soon-to-be-ex-governor Sarah Palin. Previously, these criticisms by myself or others have triggered in conservatives something we didn’t know they had in them: righteous feminist outrage. Good for them! Even if I disagree with the application to governor Palin – criticizing a woman is not sexist, unless it’s premised on her gender, obviously – it’s nice to see the GOP discover feminism. Too often conservative pundits pigeonhole feminism as a militant philosophy, which is rather like defining Christianity by Fred Phelps. It’s never too late to discover feminism for the big-tent, inoffensive, simple philosophy that it is to so many Americans. We hope they keep it up.

Sadly, by the current evidence, that doesn’t look like it’s going to happen. Ever. Check out the Wall Street Journal’s latest super-substantive criticism of the Judge:

Her net worth of $740,000 is a third of what the last new Supreme Court justice, Samuel Alito, brought to the bench, and he had only worked previously in government or as a judge. That’s not much of a nest egg, given her salary and opportunities. [. . .]

And the way she spends her money does tell us something about a woman who will rule on the most cases involving business, labor and capital. Simply put, Ms. Sotomayor’s behavior would make a financial planner cringe. [. . .] She has been the model of financial disinterest. [. . .]

She owns no stocks or bonds. [. . .]

As she goes through confirmation hearings beginning next Monday, lawmakers are unlikely to ask why she has not accumulated more financial assets. It’s an interesting question to ponder, but the senators likely will turn to sexier topics. That’s too bad, because how one handles money is something to which everyone can relate.

On the surface, this “critique” is obnoxious only for its apparent snobbery, containing within it the presumption that someone who has practiced and adjudicated complex securities disputes somehow doesn’t understand the capital markets, because she’s never been personally involved in them. But I think something far more nefarious is at work here — an attempt to play off the old sexist stereotype of the spendthrift woman (see above, right). Take your cues from the conspicuous use of gender terms (“…a woman who will rule on…”), as much as the simple fact that, without more, Judge Sotomayor’s finances couldn’t be less relevant to her competence as a federal judge.

One has to imagine that, if Peter Brown actually cared about Judge Sotomayor’s record on cases implicating the capital markets, he could have turned to her case law. As a judge sitting in first the SDNY and then the Second Circuit, she’s ruled on, and written opinions on, no small number of important “money” cases, and reviewed all with a competency that her opponents would find thoroughly uninteresting. See, e.g., Press v. Quick & Reilly, Inc., 218 F.3d 121 (2000) (applying antifraud liability to a case of first impression, concerning broker/dealer disclosures) and U.S. v. Falcone, 257 F.3d 226 (2001) (canvassing insider trading rules). Securities is not an easy field of law, especially these days, when lawyers and judges must be as much investment bankers as jurists. In fact, I submit that a federal judge sitting in New York, and hearing these cases daily for twenty years, probably has a better grasp on it than a mere columnist.

Presumably, if Brown cared enough to look beyond his brandy snifter and actually confront Judge Sotomayor on her record, he’d have something novel to say about the intersection of her jurisprudence with the capital markets. But since he can’t be bothered to do so, we’re left with this useless & vaguely insulting article. Is this the best the Journal can do?