Torture advocate opposes Sotomayor nomination

John Yoo, a professor of law at Berkeley, a one-time legal counselor to the Bush regime, once a clerk to Clarence Thomas and currently an object of a Spanish war crimes trial, discusses Obama's first Supreme Court nomination:

President Obama's nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House. Sotomayor has sterling credentials: Princeton, Yale Law School, former prosecutor, and federal trial and appellate judge. But credentials do not an excellent justice make. Justice Souter, whom Sotomayor would replace, had an equally fine c.v., but turned out to be a weak force on the high court.

Empathy versus excellence… It seems Yoo believes Judge Sotomayor, like Souter before her, will produce results he dislikes, that will offend his political sensibilities, that he believes will be less-than-excellent and that she will be a probable "weak force" on the Court. Like Souter, she also has the bona fides of a successful lawyer…. Yet these are not enough to satisfy Yoo, who continues:

She will not bring to the table the firepower that many liberal academics are asking for. There are no opinions that suggest she would change the direction of constitutional law as have Antonin Scalia and Clarence Thomas on the Supreme Court, or Robert Bork and Richard Posner on the appeals courts. Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.

Now, it seems, Sotomayor will produce results Yoo could live with because her rulings will not likely disturb the constitutional fundamentalism associated with the Reagan Revolution and its aftermath! Since this belief — that Sotomayor is a lightweight that will hew to the fundamentalist program —leaves Yoo without a point to drive home in his critique of the Sotomayor nomination, his course changes to:

But conservatives should not be pleased simply because Sotomayor is not a threat to the conservative revolution in constitutional law begun under the Reagan administration. Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings.

In Yoo's judgment, then, although Sotomayor lacks the intellectual power required by a Supreme Court justice and poses no threat to the Reagan Revolution as it pertains to constitutional law, she will still somehow impose her prejudices on her Court rulings, an imposition that will undermine the "faithful application of the Constitution." Her inclination to rely upon her biography and her empathy thus makes her unworthy of a seat on the Court.

Yoo, unsurprisingly, does not address the issues raised by his strange argument, issues that follow from the misalignment between his prediction that Sotomayor will pose no threat to the Reagan Revolution in constitutional law and his prediction that Sotomayor will bring unworthy prejudgments to this lofty post and then impose them on her jurisprudential work. Of course, the tension between the beliefs which support the two predictions dissipates a bit if one were to accept that constitutional fundamentalism of the conservative stripe is logically consistent with some instances of constitutional prejudice, namely, those prejudices typical of a constitutional fundamentalist. A prudent person might even expect these acceptable prejudices to mirror Yoo's own! But tensions in Yoo's position would persist and remain effective even if one were to accept that constitutional fundamentalism is consistent with some instances of constitutional prejudice. If prejudices are unacceptable, why then should anyone accept those attributable to a constitutional fundamentalist? They should not accept them if they wish to remain logically consistent.

Inconsistency does not appear to bother Yoo. He does attempt to avoid problems of this sort by relying upon what can be called the shotgun technique of criticism: One can expect to down one's prey if one hits it with an adequate amount of buckshot. Thus Yoo's recourse to an ad hoc collection of criticisms of Sotomayor's nomination.

Of course, killing Sotomayor's candidacy by using this method does not conform at all to the ideal of a reasoned deliberation over the merits of a particular candidate for the Supreme court, her legal positions and past work or, for that matter, of the norms that ought to be used when considering a candidate for the Supreme Court. Yoo's criticism is not really criticism at all. It is, rather, just another political hatchet job.

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