Janós Blaschke, The Goddess Themis, 1786

Justice is conventionally depicted in countless engraved, painted, or sculpted representations displayed at courthouses and in judicial chambers at every administrative level around the European world in the form of the goddess known to the Greeks as Themis, to the Romans as Iustitia. Justice carries a sword and a balance, and is blindfolded.

Themis’ blindfold signifies not her lack of access to reality or to the facts of the cases she is adjudicating, but her indifference to persons or affiliations, her impartiality and objectivity. Themis was not the goddess of justice as an expression of human whim or desire, but of justice in accordance with the divine order.

Judge Sonia Sotomayor, in delivering the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California, Berkeley, School of Law, expressed a very different, more contemporary view of justice.

Judge (Miriam) Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” …

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. ….

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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. …

[O]ne must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. …

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

In her lecture, Judge Sotomayor acknowledges the existence of an ideal of impartiality, but implicitly rejects the concept of an objective legal or moral order. She additionally denies that human beings are really capable of impartiality and objectivity.

In the place of the Natural Law, which guided the Greeks and Romans and the framers of the United States, Sonia Sotomayer enshrines the left’s identity politics, its narrative of the victimhood of certain groups, its indifference or hostility to others. As a judge, Sotomayor denies the possibility of transcending human partiality and prejudice. Her openly expressed relativism denies that any real distinction between justice and injustice exists in any case.

In place of justice, “as circumstances and cases require,” Sotomayor proposes to substitute personal emotion.

Her cherished personal emotions, of course, amount really to ethnic and gender-based chauvinism combined with carefully cultivated group and class grievances. Instead of believing that judges should strive to emulate the divine, modern liberalism encourages its representatives in the judiciary to sink and become “all too human,” to be their worst, their most self-infatuated and partisan selves rather than to transcend their own prejudices and animosities. The liberal judge does not aspire to be a disinterested servant of the law. The liberal judge proposes to pursue the interests of groups or persons he or she feels to be specially deserving of advocacy and assistance.

Thomas Sowell describes how Judge Sotomayor’s jurisprudence actually works when applied in reality.

Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

In judging, better to have Themis than Thersites.

The US Supreme Court has reviewed six cases decided by Sonia Sotomayor. Her decisions were reversed five times, and in the only case in which her decision was upheld, her reasoning was unanimously rejected by the Court because it “flies in the face of the statutory language.”

Meanwhile she has a pretty decent chance of receiving a further reversal in Ricci v. DeStefano, an affirmative action case from New Haven, Connecticut involving white firemen being denied promotion because no minority applicants scored satisfactorily on the promotion exam. Sotomayor was part of a three judge panel which supported the city against the firemen, and voted against the full appeals court reviewing the case.

The New Republic’s Legal Affairs editor Jeffrey Rosen is today urging Sonia Sotomayor’s confirmation, and claims that “conservatives are misreading” him on Sotomayor, but back on May 4 Rosen wrote the following paragraphs as part of an article titled “The Case Against Sotomayor.”

[D]espite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. “I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge–maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?

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By May 8, Rosen was regretting his earlier title, and trying to qualify his own position. But he still took the occasion to publish excerpts from Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes rating of judges based on reviews of attorneys appearing before them.

Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive–not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system–as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.”

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You can get an idea of what Sonia Sotomayor is like from this 2:10 video excerpt from what seems to be a panel discussion of legal career options at Duke University Law School in 2005. We will be seeing her in the clip, indicating with derision her contempt for the notion of judicial restraint, a good deal in the near future.

He’s a real mother, alright

Get ready, America, for a return to the 1970s era of federally-mandated nationwide 55 mph speed limits, emission-strangled automobile engines, and speedometers topping out at 85.

Barack Obama has appointed America’s Safety-Nazi-in-Chief Charles A. Hurley, current head of Mothers Against Drunk Driving to preside over the National Highway Traffic Safety Administration (NHTSA).

Well, you’re living in the Nanny State now, boys and girls. Hurley is a long time advocate of drastically more extensive federal supervision of your naughty driving.

He is on the record as supporting a .04% Blood Alcohol Content limit, meaning you are guilty of DUI if you sip one glass of Chardonnay at dinner, and he favors vastly expanded pullover alcohol checks to enforce it, along with breathalyzer-ignition interlocks.

Expect to see the federally mandatory 55 mph speed limit again, expanded liability opportunities for trial lawyers, and a nationwide regime of stoplight and speed check cameras everywhere.

Repeat after me: “I love Big Brother!”

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Hat tip to Walter Olson.

Rosa Brooks, talking head

Not only has the Obama administration ruled out forceful interrogations of captured terrorists, his latest highly controversial appointment to the Department of Defense of all places is likely a strong signal that radical policy changes will not be stopping there.

Newsmax:

A liberal newspaper columnist and former counsel to billionaire George Soros’ Open Societies Institute has been tapped for a key Defense Department position despite what Washington insiders have termed her “extremist,” Bush-bashing views.

Rosa Brooks will serve as principal adviser to Undersecretary of Defense Michele Flournoy. … In that substantial insider position, Brooks, who once famously penned that the Bush administration’s “big legal lies paved the way for some of the most shameful episodes in our history,” will have constant contact with DOD policy chief Flournoy, who reports directly to Defense Secretary Robert Gates and eyeballs every major defense department decision.

Gates, a holdover from the Bush era, hasn’t exactly embraced the controversial Brooks. One anonymous staffer characterized Brooks as an “extremist,” noting that her coming onboard was Flournoy’s doing, not his leader’s, according to a report in HumanEvents.com.

“Gates did not hire her,” the official emphasized.

In 2007, Brooks wrote: “Thanks to U.S. policies, al-Qaida has become the vast global threat the administration imagined it to be in 2001.”

That sort of attitude, along with Brooks’ apparent lack of military or policy experience, has many pundits scratching their heads over the hiring.

“It is hard to think of a more inappropriate political appointment at a time when America needs a hard-headed approach to winning a global war instead of defeatist, far-left rhetoric,” wrote the U.K.’s Telegraph.

After only three months in office, David J. Rothkopf declares Obama all-time champion of Czar creation.

With yesterday’s naming of Border Czar Alan Bersin, the Obama administration has by any reasonable reckoning passed the Romanov Dynasty in the production of czars. The Romanovs ruled Russia from 1613 with the ascension of Michael I through the abdication of Czar Nicholas II in 1917. During that time, they produced 18 czars. While it is harder to exactly count the number of Obama administration czars, with yesterday’s appointment it seems fair to say it is now certainly in excess of 18.

In addition to Bersin, we have energy czar Carol Browner, urban czar Adolfo Carrion, Jr., infotech czar Vivek Kundra, faith-based czar Joshua DuBois, health reform czar Nancy-Ann DeParle, new TARP czar Herb Allison, stimulus accountability czar Earl Devaney, non-proliferation czar Gary Samore, terrorism czar John Brennan, regulatory czar Cass Sunstein, drug czar Gil Kerlikowske, and Guantanamo closure czar Daniel Fried. We also have a host of special envoys that fall into the czar category including AfPak special envoy Richard Holbrooke, Mideast peace envoy George Mitchell, special advisor for the Persian Gulf and Southwest Asia Dennis Ross, Sudan special envoy J. Scott Gration and climate special envoy Todd Stern. That’s 18.

This is a very conservative estimate, however. I will allow you to pick whom you would like out of the remaining candidates. For example you could count de facto car czar Steve Rattner even though the administration went out of its way to say they weren’t going to have a car czar… before he ultimately emerged as the car czar. You could count National Director of Intelligence Dennis Blair, often referred to as the intelligence czar, although you might not want to because his job has a different kind of status on the org chart. I’m not going to count Paul Volcker who was referred to as Obama’s economic czar because Obama is not making much use of Volcker (at least according to reports).

But you certainly might want to count people deemed by the media to be the “cyber security czar” or the “AIDs czar” or the “green jobs czar” even if there are reasons to quibble about the designation of one or two of them.

Why do all these imperial appointments matter?

They matter procedurally because “Czar” appointments do not require Senatorial confirmation and represent an end-run around the Constitutional “Advise and Consent” prerogative of the US Senate. Obama can make any number of rancid radicals into “czars” of this, that, or the other thing, delegating to them large executive branch powers and responsibilities, even in cases of individuals who would not be confirmable by a vote in the Senate.

Fox News:

Czardom does not sit well with Sen. Robert Byrd. Though slowed by age, the West Virginia Democrat remains vigorous in his defense of the powers ceded to the Congress by the Constitution. He said he believes czars are a slick way of governing without having to answer to Congress.

There is no constitutional requirement that czars undergo those pesky Senate confirmation hearings.

Former Rep. Ernest Istook said he doesn’t like the term czar either because it’s too Russian.

“We could just call somebody the big boss, el jefe, head honcho, the big cheese,” he said. “My father used to refer to people as the chief cook and bottle washer.”

Istook said he believes the Obama team is using the appointment of czars to reinvent how the executive branch operates.

Matthew Vadum, at American Spectator, notes that Barack Obama has selected as Director of the Census the most partisan possible figure, a leftwing sociologist previously involved in democrat efforts to supplement real enumeration with creative estimates of supposedly uncountable homeless and minority democrat voters.

A practitioner of the statistical voodoo known as “sampling” has been selected by President Obama to head the Census Bureau, which is poised to carry out the decennial census next year with ACORN’s help. Liberal pressure groups and Democrats have long favored using statistical modeling, a practice controversial because it’s flagrantly unconstitutional and because it opens up the counting process to political manipulation.

“A sampling process would open the census to the worst kind of political manipulation,” Sen. Tom Coburn (R-Oklahoma) recently said. “The Constitution clearly requires a count of every person, not a best guess that could be influenced by political rather than empirical considerations.”

The president’s nominee is Robert M. Groves, a professor of the alleged discipline known as sociology at the University of Michigan.

Republican lawmakers are justifiably alarmed, the New York Times reports.

Some news agency story.

Meghan Clyne, in the New York Post, sees the appointment of ultraleftist Yale Law School Dean Harold Hongju Koh to the top legal position in the State Department as a step toward putting Koh on the Supreme Court.

Judges should interpret the Constitution according to other nations’ legal “norms.” Sharia law could apply to disputes in US courts. The United States constitutes an “axis of disobedience” along with North Korea and Saddam-era Iraq.

Those are the views of the man on track to become one of the US government’s top lawyers: Harold Koh.

President Obama has nominated Koh — until last week the dean of Yale Law School — to be the State Department’s legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice.

It’s a job where you want a strong defender of America’s sovereignty. But that’s not Koh. He’s a fan of “transnational legal process,” arguing that the distinctions between US and international law should vanish. …

Koh has called America’s focus on the War on Terror “obsessive.” In 2004, he listed countries that flagrantly disregard international law — “most prominently, North Korea, Iraq, and our own country, the United States of America,” which he branded “the axis of disobedience.”

He has also accused President George Bush of abusing international law to justify the invasion of Iraq, comparing his “advocacy of unfettered presidential power” to President Richard Nixon’s. And that was the first Bush — Koh was attacking the 1991 operation to liberate Kuwait, four days after fighting began in Operation Desert Storm.

Koh has also praised the Nicaraguan Sandinistas’ use in the 1980s of the International Court of Justice to get Congress to stop funding the Contras. Imagine such international lawyering by rogue nations like Iran, Syria, North Korea and Venezuela today, and you can see the danger in Koh’s theories.

Koh, a self-described “activist,” would plainly promote his views aggressively once at State. He’s not likely to feel limited by the letter of the law — in 1994, he told The New Republic: “I’d rather have [former Supreme Court Justice Harry] Blackmun, who uses the wrong reasoning in Roe [v. Wade] to get the right results, and let other people figure out the right reasoning.”

Worse, the State job might be a launching pad for a Supreme Court nomination. (He’s on many liberals’ short lists for the high court.) Since this job requires Senate confirmation, it’s certainly a useful trial run.

More background, from Volokh.

Greg Pollowitz explains, at National Review Online, that it was not simply Neocon Zionists who torpedoed the Freeman nomination. It was his financial ties to foreign governments (the Saudis and China) and his own extreme statements, particularly those expressing contempt for human rights in China, that did him in.

Meanwhile, David Broder is shedding big, salty tears over the nation’s loss of the services of someone so “thoughtful and obviously smart as hell,” with a special gift for seeing “how situations look to the people on the other side,” particularly when those other people are lining his pockets.

Why, Freeman is so smart, Broder argues, that he would have been able to “explain” Chinese behavior in the recent incident in which Chinese vessels harassed a US intelligence ship in international waters.

I’m sure Freeman would have said that the Chinese were simply re-asserting their national pride after being so cruelly mistreated by the Western powers in the 19th century, and that their making innovative maximalist claims to territorial sovereignty over the South China Sea is a natural expression of their wounded dignity to which we should understandingly concede. Behaving otherwise on our part would be arrogant and provocative. See, Mr. Broder? The country doesn’t need Charles Freeman as head of NIC. I can tell you myself just what he would have said.

Former Saudi Ambassador Charles Freeman said he was throwing himself under the bus, as a form of protest against the nefarious domination of American foreign policy by the International Zionist Conspiracy.

Washington Post:

Charles W. Freeman Jr. withdrew yesterday from his appointment as chairman of the National Intelligence Council after questions about his impartiality were raised among members of Congress and with White House officials.

Director of National Intelligence Dennis C. Blair said he accepted Freeman’s decision “with great regret.” The withdrawal came hours after Blair had given a spirited defense on Capitol Hill of the outspoken former ambassador.

Freeman had come under fire for statements he had made about Israeli policies and for his past connections to Saudi and Chinese interests. …

In an e-mail sent to friends yesterday evening, Freeman said he had concluded the attacks on him would not end once he was in office and that he did not believe the NIC “could function effectively while its chair was under constant attack.” He wrote that those who questioned his background employed “selective misquotation, the willful distortion of the record . . . and an utter disregard for the truth.”

Such attacks, he said, “will be seen by many to raise serious questions about whether the Obama administration will be able to make its own decisions about the Middle East and related issues.” And he said he regretted that his withdrawal may cause others to doubt the administration’s latitude in such matters.

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But, as Greg Sargent reports, Chuck Schumer is trying to take credit for pushing him.

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Andrew Sullivan finds the process interesting. The debate was in the blogs, not the MSM.

There are a couple of things worth noting about this minor, yet major, Washington spat. The first is that the MSM has barely covered it as a news story, and the entire debate occurred in the blogosphere. I don’t know why. But that would be a very useful line of inquiry for a media journalist.

The second is that Obama may bring change in many areas, but there is no possibility of change on the Israel-Palestine question. Having the kind of debate in America that they have in Israel, let alone Europe, on the way ahead in the Middle East is simply forbidden. Even if a president wants to have differing sources of advice on many questions, the Congress will prevent any actual, genuinely open debate on Israel. More to the point: the Obama peeps never defended Freeman. They were too scared. The fact that Obama blinked means no one else in Washington will ever dare to go through the hazing that Freeman endured. And so the chilling effect is as real as it is deliberate.

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Our own original 2/26 posting was one of the earliest.

Charles Wellman Freeman, Jr.

Barack Obama’s choice to lead the National Intelligence Council, the body which advises policy makers on global strategy and which produces the National Intelligence Estimate, is reported to be former Ambassador to Saudi Arabia Charles W. Freeman, Jr.

The radical left is rejoicing over what even the AntiWar.com Blog describes as an “amazing appointment.”

Freeman’s position on the political map can be identified by the fact that he succeeded George McGovern as head of the Middle East Policy Council.

He is renowned for anti-War-on-Terror and anti-Israel public pronouncements, as well as for statements sympathetic to the viewpoint of despotic regimes like those of Saudi Arabia and China.

Marty Peretz, at New Republic, expresses profound indignation at this appointment.

Here is the most stunning prospective appointment of the Obama administration as yet. Not stunning as in “spectacular” or “distinguished” but stunning as in bigoted and completely out of synch with the deepest convictions of the American people. What’s more, Charles “Chas” Freeman is a bought man, having been ambassador to Saudi Arabia and then having supped at its tables for almost two decades. …

That Chas, as he is so artfully called, also made himself a client of China and China a client of himself, is evidence that he has no humane or humanitarian scruples that underlay well, his unscrupulous political views, viz, his remonstrance to Beijing that it should have smashed the democracy protests as soon as they emerged on the streets. …

Chas Freeman is actually a new psychological type for a Democratic administration. He has never displayed a liberal instinct and wants the United States to kow-tow to authoritarians and tyrants, in some measure just because they may seem able to keep the streets quiet. And frankly, Chas brings a bitter rancor to how he looks at Israel. No Arab country and no Arab movement–basically including Hezbollah and Hamas–poses a challenge to the kind of world order we Americans want to see. He is now very big on Hamas as the key to bringing peace to Gaza, when in fact it is the key to uproar and bloodletting, not just against Israel but against the Palestinian Authority that is the only group of Palestinians that has even given lip-service (and, to be fair, a bit more) to a settlement with Israel.

That Freeman would be chosen as the president’s gatekeeper to national intelligence is an absurdity.

The appointment of head of the NIC does not require Senatorial confirmation, so, outrageous as it is, this one is probably a done deal.

First, Obama’s appointees were having trouble with unpaid taxes. Now, according to Iowahawk, it’s dead hobos.

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Hat tip to the News Junkie.