Slam Dunks and Predictibility

A good political blogger, BarbinMD, who is linked at the DailyKos, had the following title to her entry on the Sotomayor nomination

Predictable Attacks Against Sotomayor Begin

After which she (?) listed a number of standard comments, disturbingly predictable, about Sotomayor. You can find it yourself if you want to read this dreariness.

I had been thinking exactly the same thing. A couple of weeks ago, on the NPR syndicated radio show (one of those that actually allows guests, and callers, with different perspectives on the show, and doesn't involve "dittoes" [or "megadittoes"], caller abortions, the term "Feminzazis," or the expressed desire for the current President to fail), there was a discussion about the upcoming nomination.

For the conservatives, Richard Viguerie spoke. A standard-bearer of the conservatives, and "King of Direct Mail" (hey, if it works, fine, but it's kind of an embarrassing way for a grown man to make a living), said various things, none of which were surprising: this will be an ideological battle—which conservatives always win [apparently distinct, then, from electoral battles]—a teaching opportunity for conservatives, wants a judge who will be a strict constructionist, etc., etc..

This was, of course, before anyone (including Obama) knew who the nominee would be.

Today, Vigurie was back on the same show, to discuss the same topic.

He offered, virtually word-for-word, the same critique: this will be an ideological battle—which conservatives always win, a teaching opportunity for conservatives, wants a judge who will be a strict constructionist, etc., etc.. He did take the time to note that Sotomayor was a "leftist extremist."

It made me think it really wouldn't have mattered who Obama had nominated; Vigurie could (literally) have phoned in his remarks. Unless, perhaps, Obama had nominated Frank Easterbrook (aka Easterbunny, and unlikely). As one caller noted, elections have consequences. I think you should take it like a man, Dick.

Some day I may write here about what I think is all-too-often taken as uncontroversial: namely, some kind of coherent distinction between "strict constructionism" and "judicial activism/interpretation." I doubt if that distinction can be made in any kind of consistent way that wouldn't make a judge who sticks to some version of "strict constructionism" sound like a madman.

I will note that years ago I read a piece by H. Jefferson Powell (I think that's the name; I'm doing this from memory) in the Stanford Law Review (again, I think that's right), on what the Founding Fathers thought of "strict constructionism."

Turned out, if we are to abide by their views and use the narrowest of interpretations, we better be prepared to be confused. For a strict interpretation of their view of strict interpretation seems to be that such strict interpretation was nonsense. Go figure.

The last administration had its slam dunk: George Tenet declaring that was the way to characterize the many WMD in Iraq.

This administration has its first (maybe the last, maybe not) slam dunk: Sotomayor being confirmed as the next Associate Justice of the Supreme Court.

Nice contrast, don't you think?