Charlie Savage

My opinion of Judge Sotomayor hasn’t changed much since last week’s announcement. The right-wingers attempts to tar her as a racist bug me. But not all that much. The particular sentence they keep repeating is – without context a racist remark:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. [my emphasis]

Within the speech she was giving though – when she made this remark – she seemed to be making a similar, but different point:

I would hope that a wise Latina woman with the richness of her experiences would as often as not reach a better conclusion than a white male who hasn’t lived that life.

It does seem – as Barack Obama said – that her original speech contained one sentence that was poorly phrased to convey the point she was making.

I agree with the many out there who think the right-wingers are hurting the Republican Party by making Sotomayor’s nomination about race.

The two areas that might potentially trouble me about Sotomayor are in the areas of executive power and civil libertarianism. She’s probably in the mainstream of the conservative/liberal consensus on these issues – which is an improvement over the right-wing extremism on these issues evident in Judge Roberts and Judge Alito. But I am not sure where within this conservative/liberal consensus she stands.

Sotomayor’s ruling the “douchebag” case – though it is certainly possible to view her deference to the school’s position as a judicial modesty which I can support. But I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

On the issue of executive power, Sotomayor’s record is thin. As Charlie Savage wrote in the New York Times:

[T]he effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court.

“Given that the decisions have generally been 5-4 in this area, this could be terribly consequential,” said David Golove, a New York University law professor. “We’re losing one of the court’s strongest leaders on the side of limiting executive power to reasonable bounds. If the person who replaces Souter is different than him, the balance of power may shift.”

The article was written before Sotomayor was nominated – but Savage briefly outlined her record in this area:

[O]ne person near the top of Mr. Obama’s short list — Judge Sonia Sotomayorof the United States Court of Appeals for the Second Circuit — has never worked in the federal executive branch and sits on a court that hears few executive power cases.

These issues – of executive power, war powers, of state secrets, of torture, and of national security in general – are becoming the new culture war. And it is a front in which the Court must take a strong position. I await the hearings to see what Sotomayor has to say on the issue – although I presume she will be as careful in her answers on this issue as past nominees have been on abortion.

[digg-reddit-me]Thesis: Obama is a systematic thinker – and given some of his clearly expressed views on the presidency – he may be setting up a situation where the other branches of government will be able to definitively limit the powers of the presidency. This is preferable to the president voluntarily renouncing powers – as it places the responsibility for checking the executive branch on the system rather than on the chief executive himself.

The Rest: In his inaugural address, Barack Obama seemed to clearly repudiate the Bush administration’s lawless approach to the War on Terror with this oft-quoted line:

As for our common defense, we reject as false the choice between our safety and our ideals.

In this, and in many other instances, Obama made clear that he would restore the Rule of Law – and that he considered himself, as president, to be subject to the law. This may seem to be a fundamental and basic understanding for any chief executive in a liberal democracy, but for the last eight years, the Bush administration advanced arguments and pursued policies as if it were not subject to the law.

Every time the Supreme Court ruled against the Bush administration, Congress passed a law to restrain the executive branch in some way,some quasi-independent parts of the executive branch opposed him – it was always uncertain what Bush would do – whether he would simply ignore the attempts to check his power; whether he would declare the checks unconstitutional and then ignore them; whether he would secretly ignore them and prosecute anyone who informed authorities that he was breaking the law; or whether he would attempt to force Congress to pass a legislative justification for his actions. In fact, Bush at one time of another did all three of these. Obama has made clear that he not only respects the Rule of Law but considers checks and balances on the presidency to be part of the democratic process set out by the Constitution. Obama is mindful of the chief executive’s role is in this system – and that, as Gregory Craig, White House Counsel explained:

[Obama] is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

Combine this statement with Obama’s decisions regarding rendition, the state secrets privilege, and investigating abuses of the Bush administration – and many civil libertarians and critical observers of the Bush administration from Glenn Greenwald to Andrew Sullivan to Charlie Savage are preparing to be disappointed.

Let’s take a step back for a moment and postulate that Obama holds these three relatively uncontroversial and related positions that he has articulated on numerous occasions:

He believes the president is subject to the law and is committed to upholding the Rule of Law.
He believes that correct processes should be followed and that, “Each branch of government is balanced by powers in the other two coequal branches.”
At the same time, he has little desire to use his political capital and energy prosecuting Bush administration officials.

Obama articulated these three sentiments in a response to a question by Sam Stein of the Huffington Post at his February 9, 2009 press conference:

My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.

Dahlia Lithwick, another chronicler and critic of the Bush administration’s legal abuses, interpreted Obama’s statements and actions this way:

…by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that “nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I’m more interested in looking forward than I am in looking backwards.” The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

But to me, this sounds like an invitation to push him to do what is right – as FDR said to numerous audiences who came to ask him to pay attention to their issue (and here I paraphrase):

I agree with you, I want to do it, now make me do it

Supporting this, aside from Obama’s many statements on these matters, are the public opinions of many of those he appointed to key positions in the Justice Department, including the attorney general:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning. [my emhpasis]

Here is where the speculation really starts though – and only time will determine if these guesses are correct. Obama, as president, does not believe it is his role to give up executive power. For one, by doing so, he is antagonizing certain elements of the executive branch that he needs to bring to his side – in the state secrets case, for example, the CIA.

Secondly, by voluntarily renouncing a power, he is in some sense affirming the inherence of this power. Bush believed he had the power to say an entire subject matter was a state secret and thus have an entire lawsuit revoked; if Obama claimed he didn’t have this power, and the Courts then ruled he didn’t, the Court would not be “checking” the president so much as deferring to the new president’s view of his own powers. However, if Obama maintains he has this power – and the Court rules that he does not – it does provide a check. If Congress passes a law restraining the president’s use of this power, it will again provide a check. Each of these scenarios provides a firmer check on presidential power than does Obama’s giving up of these powers. It places the responsibility for checking executive powers not on the President, but within the system, where it should be.

Third, Obama has a number of crises to deal with right now and realizes that there are significant elements who feel strongly about these balance-of-powers issues. What he wants then – is for those groups that are passionate about these issues to prepare the public and to force him to act on them. This way, he can preserve his political capital – and by merely responding to issues forced upon him can avoid charges of looking like he is merely out for retribution.

If this is Obama’s thinking, then we can expect him to not oppose efforts to reign in his powers too strongly – and to accept those limits once they have been legitimated by the Courts or the Congress. If this isn’t Obama’s thinking, we can still attempt to force him to act but the outcome will be less certain.