How To Precede?

President Obama is losing his battle with the Supreme Court before it's even ruled on his landmark health care legislation, and he started off on the wrong foot in his mouth this past Monday when he suggested that a declaration of the law as unconstitutional would be breaking precedent. "I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," he said. Well, this is a good example."

During his speech Tuesday to the convention of the American Society of Newspaper Editors, after it became apparent that Obama had somehow forgotten about the landmark 1803 Marbury v. Madison case that invalidated a law affecting the judiciary that was passed by a democratically elected Congress, setting such a precedent of declaring laws unconstitutional, the President attempted to clarify his remarks. He did so in a statement full of long pauses, suggesting that Solicitor General Donald Verrilli isn't the only one in Washington who has trouble making a verbally coherent legal case:

"The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it. But it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress. And so the burden is on those who would overturn a law like this."

He seemed to suggest that the Court should always hold back every time Congress passes a law that's constitutionally dubious, and some took his ongoing remarks as an attempt to intimidate the justices into upholding the law. White House press secretary Jay Carney had to clarify the clarification.

"It's the reverse of intimidation," Carney insisted. "He's simply making an observation about precedent and the fact that he expects the court to adhere to that precedent." But as Carla Johnson of the Associated Press pointed out, an overturning of the health are law, while it would be unusual, would "not be unprecedented, even under the very narrow terms Obama and [Carney] later attached to his comments."

In short, the White House hasn't explained anything about the standard of judicial precedent after three attempts in as many days.

If President Obama - a constitutional law professor - can't articulate an understanding of the role of precedent at the Supreme Court, how does he expect the rest of us to understand it? 

Wise Latinas and Foolish Honkies

Sonia Sotomayor's confirmation hearings for her Supreme Court appointment begin today, and although Republicans lack the votes and power to stop her, they hope to gain some political clout with the American people by depicting her as a judge out of the mainstream and prone to decisions that place her out of sync with the American public.

Senator Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, is still irked by her "wise Latina" comment. "She has criticized the idea," the dumb cracker said, "that a woman and a man would reach the same result. She expects them to reach different results. I think that's philosophically incompatible with the American system."

Republican opposition to Sotomayor is now being seen as less based on her Hispanic background, however, than her moderate, slightly left-leaning judicial philosophy. As E.J. Dionne explained in his column today, the right is now emboldened by a conservative majority now on the Court bent on overturning years - decades, even - of judicial precedent in favor of an agenda that favors wealthy and powerful interests. Sotomayor will not change the balance of the Court, but in the possible scenario of a conservative justice retiring or dying, the GOP wants to make opposition to Sotomayor a test run for stopping an Obama Supreme Court nominee who really could upset the balance of power against the right.

Dionne has noted that the "conservatives" have made radical breaks with precedent, while Sotomayor's rulings on the lower courts reflect a desire to conserve it. Maybe a wise Latina would, in some cases, reach a better decision than a white male. She certainly would reach a better decision in any case than a black male if the black male in question is Clarence Thomas. But this fight the Republicans are waging is not about suspicion of Latina judge. It's about fear of more wise judges like Sotomayor, regardless of race, ethnicity or gender, joining the Court and stopping the current Gang of Five from turning the judiciary into a pocket of the vested interests that make America a meaner place for the rest of us. The GOP wants us to believe that their radical right-wing judicial agenda is good for the country, and they hope to use these hearings to persuade more people to buy that.

As for Jeff Sessions, his gripes are more likely personal than political; I only need to remind you that he's likely still bitter about his failure to get a federal judgeship when, after appointed to one by Ronald Reagan in 1986, he was rejected by the Senate. When Sessions finds offense in Sotomayor's assertion that a wise Latina would make a better decision than a white male who hasn't lived the same life, he's the hypothetical white guy she's most likely talking about.)