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By Kevin Carey
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July 13, 2009
'JUDICIAL MODESTY AND RESTRAINT'.... The first day of Judge Sonia Sotomayor's confirmation hearings were dominated by opening statements, not Q&A, and most of the mini-speeches were predictable. But as Digby noted this afternoon, Sen. Sheldon Whitehouse's (D-R.I.) remarks were "a thing of beauty." They were, indeed.
An excerpt:
"In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about "activist" judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes.
"It is fair to inquire into a nominee's judicial philosophy, and we will here have a serious and fair inquiry. But the pretence that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history.
"I particularly reject the analogy of a judge to an 'umpire' who merely calls 'balls and strikes.' If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.
"The 'umpire' analogy is belied by Chief Justice Roberts, though he cast himself as an 'umpire' during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that '[i]n every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.' Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, 'has served the interests, and reflected the values of the contemporary Republican party'? Some coincidence.
"For all the talk of 'modesty' and 'restraint,' the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some 'balls and strikes.' Over and over, news reporting discusses 'fundamental changes in the law' wrought by the Roberts Court's right wing flank. The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito."
Nicely done.
—Steve Benen 4:45 PM
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You know, Whitehouse is becoming quite the Mensch on Judiciary! For the last year and more, he's been forthright, articulate and pretty aggressive in trying to drag his Committee and Caucus colleagues along to show some spine regarding Republicans and the aggrandisement of the Executive -- regardless of who's been in the White House. Good for him!
Posted by: kevmo on July 13, 2009 at 4:55 PM | PERMALINK
I, too, was impressed by Senator Whitehouse's opening statement. Gauntlet well thrown!
Is it too early to place him at the head of the line of succession to the Crown of Eloquence precariously residing atop the snowy pate of the senior Senator from West Virginia?
Posted by: DAy on July 13, 2009 at 5:01 PM | PERMALINK
That was outstanding! I went to college and lived in Rhode Island for four years, and Whitehouse's performance makes me proud to have had an association with his state.
Posted by: seriously on July 13, 2009 at 5:02 PM | PERMALINK
I wonder if Roberts is capable of recognizing how activist he has become.
Posted by: freelunch on July 13, 2009 at 5:03 PM | PERMALINK
*sigh* If only all our Senators were as eloquent as Sen. Whitehouse...
Posted by: Limbaugh's Diabetes on July 13, 2009 at 5:04 PM | PERMALINK
Too bad the media will ignore every word of it. After all, Jeff Sessions has "concerns" about Sotomayor's "prejudices" that are far more important!
Posted by: Screamin' Demon on July 13, 2009 at 5:05 PM | PERMALINK
Senator Whitehouse is also an excellent questioner of witnesses, something most senators are not.
Posted by: Amy on July 13, 2009 at 5:08 PM | PERMALINK
I've been extremely impressed by Sen. Whitehouse since he came into the Senate. His background is also impressive. I think he'd make a fine U.S. Attorney General in particular. The man's legal and ethical instincts are seemingly flawless. He has a first-rate mind and one of the few spines in the Democratic party. We need many more like him.
Posted by: winddancer on July 13, 2009 at 5:09 PM | PERMALINK
And what he forgot to point out, as the Corporate/Repiglican Media has dutifully ignored, is the overturning by the Roberts court OF THE EXISTING PRECEDENT AND LAW that gave all citizens a right TO HAVE AN ATTORNEY PRESENT when being questioned by law enforcement !! That's right the Roberts court OVERTURNED this right. How many of you know about this ? And, if not, why not ?
Posted by: stormskies on July 13, 2009 at 5:10 PM | PERMALINK
All I can say is, "Brilliant!!"
Now, if only that got some decent air time on the MSM and in the major "news" papers. Yeah, I know--wishful thinking.
Posted by: Michael W on July 13, 2009 at 5:12 PM | PERMALINK
Jeff Sessions has "concerns" about Sotomayor's "prejudices" that are far more important!
Yes, Senator Sessions is concerned that she won't act like an upper-class Southern Gentleman who has absolutely no empathy for anyone who is not identical to himself. My sympathy to Senator Sessions and the rest of the bigot brigade.
Posted by: freelunch on July 13, 2009 at 5:12 PM | PERMALINK
Now if he'd only mentioned Ricci. That was a classic case of "judicial activism" on the part of the Roberts court.
Posted by: PaulB on July 13, 2009 at 5:14 PM | PERMALINK
It is so refreshing to hear someone call out conservative judicial activism. The damage that Roberts and Alito will do to constitutional rights, seperation of powers, consumer protection and a host of other issues will be Bush's last middle-finger to the country.
Posted by: thorin-1 on July 13, 2009 at 5:14 PM | PERMALINK
Wow. That was a pleasure to read.
Thanks.
Posted by: JPS on July 13, 2009 at 5:23 PM | PERMALINK
Now if he'd only mentioned Ricci. That was a classic case of "judicial activism" on the part of the Roberts court.
No, you save that in the event that Ricci testifies.
Posted by: DJ on July 13, 2009 at 5:28 PM | PERMALINK
sheldon is at least a clown with a backbone in the us senate clown car. and i have noticed that when he gets a chance -- the rarity of those moments in the big shoes, red noses and funny hair rituals of that chamber makes one want to weep ceaselessly -- ol' shel can part the clouds and let the sunlight in better than most...
Posted by: neill on July 13, 2009 at 5:31 PM | PERMALINK
Whitehouse is no clown, he's actually one of the good ones. Besides, the US Senate clown car is full to overflowing with the GOP Senators.
Posted by: ckelly on July 13, 2009 at 6:52 PM | PERMALINK
I remember that Whitehouse was the third or fourth choice to run in 2006 after several bigger names declined to challenge Lincoln Chaffee. I am very glad that they did so.
Posted by: Tenzil Kem on July 13, 2009 at 7:56 PM | PERMALINK
I've been impressed with Sen. Whitehouse every time I've heard him speak, have never been disappointed. I hope he'll have many, many more years in the US Senate. The country needs him!
Posted by: Hannah on July 13, 2009 at 8:57 PM | PERMALINK
Here in teenytiny RI, we don't have a whole lot of which to be proud. Especially not among our politicians, who's venality on a per capita basis (if not in pure quantity) outdoes even Louisiana and Chicago.
So it does this old liberal's heart good to see and hear Whitehouse's statement. Thanks, senator!
Posted by: efgoldman on July 13, 2009 at 9:31 PM | PERMALINK
It is so hard to even imagine being a chief justice AND having your ass handed to you in such a concise manner.
Posted by: Kevin on July 13, 2009 at 10:31 PM | PERMALINK
Yes to Senator Whitehouse and (most) of the comments above. The only improvement would have been to add a Churchillan flourish to one sentence: "Some strikes. [Pause] Some balls."
Posted by: John F. Kerridge on July 13, 2009 at 10:36 PM | PERMALINK
NAILED IT!!!! One can only hope and pray the Alito and Roberts got to hear this, although I doubt they would give a damn if they did. Because they're such good little ass-kissers.
Posted by: Patrick Starr on July 13, 2009 at 11:48 PM | PERMALINK
Why does it seem that these kinds of thoughtful and articulate statements don't come from politicians from the south or west? (Just indulging a prejudice, thank you.)
Posted by: stevenz on July 14, 2009 at 12:09 AM | PERMALINK
Just count me as another proud Rhode Islander, I worked on Whitehouse's campaign because I wanted to help defeat a republican, any republican (but felt a little bad about Linc Chaffee who is a decent person - for a republican). But Sheldon Whitehouse is a class act and all Rhode Islanders should be proud (and of our senior Senator Jack Reed as well).
Posted by: Paul on July 14, 2009 at 3:58 AM | PERMALINK
why keep whitehouse in the senate..
his kind of straight talk and thinking is needed nationally...
Posted by: mr. irony on July 14, 2009 at 7:23 AM | PERMALINK
I wonder if Roberts is capable of recognizing how activist he has become.
That's like wondering if Al Capone was capable of recognizing that he had broken the law.
Posted by: ianam on July 15, 2009 at 1:38 PM | PERMALINK
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