An Ohio man tasted freedom for the first time in nearly 30 years Tuesday after DNA evidence showed he did not rape an 11-year-old girl and a judge vacated his conviction.

“It finally happened, I’ve been waiting,” Raymond Towler, 52, said as he hugged sobbing family members in the courtroom.

-via Raymond Towler, Convicted Rapist, Exonerated By DNA Tests After 30 Years In Prison

Towler had been serving a life sentence for the rape of a girl in a Cleveland park in 1981. He was exonerated with help from the Ohio Innocence Project, an organization that uses DNA evidence to clear people wrongfully convicted of crimes. The organization says Towler was among the longest incarcerated people to be exonerated by DNA in U.S. history. The project adds that the longest was a man freed in Florida in December after serving 35 years.

Despite the wasted decades, in a sense, Towler is lucky because he received a life sentence, which bought him the time to prove his innocence. Others are not so fortunate. According to a 2008 Justice Department report, death row waits rose from seven years in 1986 to 12 years in 2006. Though the waiting time has nearly doubled, had Towler received a seven, or 12-year sentence death sentence, he would have been killed by the state before given the opportunity to prove his innocence using the best science available.

Of course, this isn’t an argument for longer waiting sentences. These kinds of frequent exonerations serve as reminders that the death penalty is cruel, barbaric, a terrible waste of badly needed funds, and sometimes serves as a sadistic, wasteful, expensive way to kill innocent people.

And the fate of any victim of state-sponsored executions is a cruel one. Back in October 2009, Ohio Gov. Ted Strickland delayed two executions to allow a full review of lethal injection procedures. Strickland ordered the reprieves for inmates Lawrence Reynolds and Darryl Durr in the midst of a legal battle over Reynolds’s execution. The idea was that the systematic killing of human beings had to be made “more humane.”

At the time, I wrote that Strickland must have been well-acquainted with these types of executions going terribly wrong.

There was no humane way to kill 53-year-old Ohio inmate Romell Broom, who wept and tried to help his executioners find a vein, only to leave the death chamber alive.

In 2006, a Ohio prisoner named Joseph A. Clark lifted his head from the gurney after his vein collapsed and said “It don’t work, it don’t work, it don’t work, it ain’t working,” repeatedly, according to one witness. This led to “moaning, crying out and guttural noises” 30 minutes later. An hour and a half after the execution started, Clark finally died.

In 2007, another Ohio prisoner, Christopher Newton, took two hours to die due to executioners’ difficulty finding a vein, the very problem that caused the current execution delays.

Of course, there is no humane way to take a life. Killing is, in itself, abhorrent and violent even when a prisoner is injected with chemicals to paralyze their muscles — removing all outward appearances of the tremendous pain they experience in their last dying minutes — so the executioner feels moderately at peace with their role in torture.

This sick process is doubly tragic when it’s revealed the victim was innocent. It is here that I really want to stress the amazing work done by the Innocence Project, which thus far has exonerated 253 people in the United States by DNA testing, including 17 who served time on death row. These people served an average of 13 years in prison before exoneration and release.

It just doesn’t make sense to keep a system of murder in place when it’s been proven the death penalty doesn’t serve as a crime deterrent, and is actually more expensive than locking up prisoners for life. Had it not been for the amazing work done by IP, 253 innocent people would be dead, and for what? The illusion of safety?

Jeffrey Deskovic, a man who served 16 years in prison for a murder and rape he did not commit, told me Sonia Sotomayor, then a judge on the Federal Court of Appeals, refused to review his case — even though DNA evidence proved his innocence — because of a clerical error. It was only because of the work done by IP that Deskovic is now a free man.

Deskovic doesn’t want to see another innocent prisoner executed by the state. “It has nothing to do with being soft on crime, or hard on crime. It’s all measures which have to do with increasing the accuracy of the criminal justice system. Every time the wrong person is convicted, then that means a perpetrator remains free to strike again, which is what happened in my case,” he says.

During the interview, Deskovic pointed out that Sotomayor will have a vote in the Supreme Court appeal of Troy Davis, another prisoner who claims he is innocent and wrongfully convicted, and who has drawn a slew of public support. Davis was convicted for the 1989 killing of a white police officer. Since then, seven of the nine non-police witnesses have recanted their testimony, and there is no physical evidence tying him to the crime scene.

Davis’s hearing before SCOTUS has been set for June 23.

Image via Wikipedia

In today’s New York Times, Adam Liptak takes a look at the “mystery of the shrinking docket” — how the Supreme Court went from reviewing about 150 cases a year in the early 1980s, to just 80 cases a year today.

There are lots of theories being tossed around by scholars on why the Court is hearing fewer cases, but one seems to be the most comprehensive. Since 1986, the new justices, to a man (and woman), simply vote to hear far fewer cases than their predecessors. The numbers speak for themselves:

The starkest difference was between Justice Byron R. White, who voted to hear an average of 216 cases per term from 1986 to 1992, and his replacement, Justice Ruth Bader Ginsburg, who voted to hear 63 cases in 1993.

The phenomenon seemed to cut across ideological lines. Justice Clarence Thomas voted to hear 72 cases per term, down from Justice Thurgood Marshall’s 125. Justice David H. Souter voted to hear 83 cases per term, down from Justice William J. Brennan Jr.’s 129.

As Liptak points out, it doesn’t seem to have anything to do with politics — both “conservative” (Thomas) and “liberal” (Ginsburg) justices have tapered off the number of cases they select from their predecessors.  But why is this change so sudden in the last twenty years?

Well, it could be that around this time Edwin Meese III, Ronald Reagan’s attorney general in the 1980s, was beginning the conservative fight against “judicial activism” (a battle that Meese is still fighting today).

The “anti-activist judge” platform has been taken up by both sides of the aisle through the years, something Jeff Toobin writes about in last week’s issue of the New Yorker.  And while it doesn’t quite explain Justice David Souter or Ginsburg’s nominations (both were straightforward in the idea that the Constitution was an “evolving” document, according to Toobin) it might explain why the new justices, as a whole, have wanted to hear less cases.  In the last twenty years, the amount of political and popular pressure, both directly in hearings to indirectly in the press and from Congress, to not be an “activist” judge could conceivably lead the Court towards narrowing their case load in an effort to decide fewer Constitutional questions.

Update: A lawyer friend makes the point that my theory that judicial activism leads to a smaller docket is a bit attenuated, and anyway “since when have . . . justices with lifetime S. Ct. tenure, been afraid of being labeled ‘activist’?” It’s a good point — once on the bench, the justice have almost zero motivation to please anyone, so maybe my mashup of Toobin’s timeline on this problem doesn’t hold. Another theory that I was reminded of that doesn’t get mention in Liptak’s article: The Court’s docket has shrunk because the Court writes longer and more complex opinions than it ever has before. Perhaps it logically follows then, that they can’t take on the same case load they used to.

Image by Jay Tamboli via Flickr

It was hard to get a feel for Justice Sonia Sotomayor during her hearings.

She was obviously brilliant, well-reasoned and incredibly articulate — but beyond the occasional references to her Bronx upbringing and love of baseball, her personality seemed mostly under wraps. That was different from Chief Justice John Robert’s hearings, where he charmed the Senate Judiciary Committee, and more recently, Solicitor General Elena Kagan’s confirmation where she even got Sen. Arlen Specter to chuckle. But Sotomayor seemed sterile in the week of hearings, probably in large part due to the fact that her identity with her race and culture (the infamous “wise Latina” remarks) would come part and parcel with any openness.

But finally, we’re getting a glimpse into Sotomayor, Human Being, and what we’re seeing is very likeable. Sotomayor spoke with C-Span as part of an ongoing Supreme Court series starting October 4. In the excerpted interview released today, she discusses the moments leading up to the call from Obama, and they’re about as “human” as you can get:

Sotomayor was packing in her lower Manhattan home when the White House operator called at 8:10 p.m. “I actually stood by my balcony doors, and I had the — my cellphone in my right hand and I had my left hand over my chest trying to calm my beating heart, literally,” Sotomayor said. “And the president got on the phone and said to me, ‘Judge, I would like to announce you as my selection to be the next Associate Justice of the United States Supreme Court.’

“And I said to him — I caught my breath and started to cry and said, ‘Thank you, Mr. President.’ That was what the moment was like.”

The words paint a compelling picture of Sotomayor, and it’ll be interesting to hear what else the interviews reveal about the Court’s newest justice.

Image via Wikipedia

Earlier this year,  I actually physically wept when I heard Ruth Bader Ginsburg had been diagnosed with pancreatic cancer. And even though her prognosis has been great, and she’s kept up a demanding schedule, I’m sure I’m not the only one thrown into a small panic when they saw that she had been admitted to the hospital this evening:

A statement from the court said that Justice Ginsburg, 76, was taken to Washington Hospital Center as a precaution.

The statement said that she had received treatment earlier in the day for an iron deficiency that was discovered in July.

About an hour after the treatment Thursday, Justice Ginsburg “developed lightheadedness and fatigue,” the statement said. She was found to have a slightly low blood pressure, which the court said can occur after the type of treatment she received.

Although an examination found her to be in stable condition, she was taken to the hospital as a precaution, the court said.

So the good news is, that it’s a “precaution” and she’s in “stable condition.” Still, it was still a sad reminder of Ginsburg’s recent poor health, and what a tumultuous year it will be if Obama has not, one, not two, but three nominees to the Supreme Court.

Image from upi.com

Last week, Justice Sonia Sotomayor made a “provocative comment” that probed the foundations of corporate law. The case, Citizens United v. Federal Election Commission, involves whether federal campaign finance laws apply to a critical film about Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers.

The court’s majority conservatives agreed that corporations have broad First Amendment rights and that “recent precedents upholding limits on corporate political spending should be overruled.” However, Sotomayor disagreed, and said the court should reconsider the 19th century rulings that first afforded corporations the same rights as real, live people.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Corporations have been claiming personhood in order to protect their profits from undue strain under regulations or fair taxation ever since Santa Clara County v. Southern Pacific Railroad Company in 1886, a United States Supreme Court case dealing with taxation of railroad properties.

At the California Constitutional Convention of 1878, the state legislature drew up a new constitution that denied railroads the right to deduct the amount of their debts (mortgages) from the taxable value of their property, a right which was given to individuals. Southern Pacific Railroad Company refused to pay taxes under these new changes. The taxpaying railroads challenged this law, based on a conflicting federal statute of 1866 which gave them privileges inconsistent with state taxation. Basically, Big Railroad, one of the largest corporations in the United States at the time, didn’t want to pay their fair share of taxes, so the corporation claimed personhood.

The case is most notable for the statement that corporations are entitled to protection under the Fourteenth Amendment. As Justice William O. Douglas wrote in 1949, “the Santa Clara case becomes one of the most momentous of all our decisions…Corporations were now armed with constitutional prerogatives.”

Of course, corporations are not people. They don’t vote. They don’t breathe the polluted air some of their industries help to create. They have no children to drink the poisoned water they pump from their factories. Now that citizens see the toll deregulation has taken (tainted environment, outsourced jobs, and widening class divide, including a desperate underclass ruled by a tiny coterie of fat cat CEOs and bailed out financial institutions,) Sotomayor’s statement doesn’t seem as controversial as it may have a decade ago.

As tame as her remarks may have been, she still managed to scare the crap out of Todd Gaziano, director of the Center for Legal and Judicial Studies at the (surprise) conservative Heritage Foundation. ”[I]t “doesn’t give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded.”

Corporate form, in this case, means corporate personhood. It means protecting corporations from accountability and fair taxation. Corporate form, in Gaziano’s world, means “business as usual.”

One can’t predict the remainder of Sotomayor’s judgments from this one statement, but if this is the beginning of a trend, Justice Sotomayor should be applauded for her bold, fresh thinking. Now, more than ever, the United States needs a Justice who understands that corporations have been getting a free ride, and it’s time they pay their fair share.

And this probably wouldn’t have been so interesting, and definitely not made a blog post, if not for Google’s suggest search terms — the feature that automatically suggests a search topic based on what other people around the world are Googling.

Typing in our brand new justice Sonia Sotomayor’s name, gave me this result:

That’s right, what is the top thing people are looking for when they google our newest Supreme Court Justice? Her biography? Her history of jurisprudence? Her favorite baseball team?

Predictably, no.  It seems the top thing on Googler’s minds is if this wise Latina has a husband.

I quickly typed in the name of David Souter — the justice who Sotomayor replaced,  and who also happens to be unmarried. As I suspected, there was no “david souter wife” — just “david souter retirement”; “david souter judicial philosophy” and other like-minded search terms.

A similar search for “sam alito;” “justice john roberts” and “anton scalia” turned up similarly innocuous results. I was thinking that maybe the “sotomayor husband” suggestion was an aberration, but when I next tried “sandra day o’connor” husband again showed up on the list — and while it wasn’t the top hit, it was still in the top ten suggested searches.

Turning my attention to other high-powered women who weren’t married, I got similar results. “Janet Napolitano” yielded “janet napolitano married” and “janet napolitano husband” in the top five suggested searches. The same was true for Condoleezza Rice and the new Solicitor General Elana Kagan.

I’m not going to spend too much time analyzing this, as I think the evidence mostly speaks for itself. There’s lots of news about how women are getting hired in large numbers as partners to law firms, and of course their presence on the courts — all great things to be sure. But it’s important to remember — and maybe that’s what this kind of informal and anonymous aggregator demonstrates- - that hiring decisions and bar admittance rates can’t undo decades of double standards.

Image by dbking via Flickr

What’s in a name? A study a few years back, “Why Susie sells seashells by the seashore: implicit egotism and major life decisions” (PDF), found that, for instance, people named Dennis were more likely to become dentists. The authors explain that “Because most people possess positive associations about themselves, most people prefer things that are connected to the self” — as in, to take one example, things that sound like their names. They call it “implicit egoism.” It’s a small effect, but real. And it reminds us that some truly odd things can affect even the most important decisions about our lives.

Of course, our names can also affect how other people perceive us. Thus the findings of a new study on female judges’ names. “Do Masculine Names Help Female Lawyers Become Judges? Evidence from South Carolina” finds that female judges with “masculine” names (such as Kelly or Cameron) are more likely to become judges — at least in South Carolina.

Here’s the abstract:

This paper provides the first empirical test of the Portia Hypothesis: Females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual’s advancement to a judgeship and his/her name’s masculinity, which we construct from the joint empirical distribution of names and gender in the state’s entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.

The Portia Hypothesis is, of course, named for the Shakespeare character who disguises herself as a man to argue a court case.

So what accounts for the effect? A preliminary version of the paper (PDF) offers some theories:

A lawyer’s gender could explicitly matter for advancement to some decision makers; for example, some judicial positions are determined by popular election, and the electorate (or sufficiently large subset of it) could categorically prefer men to women. If nothing else were known about an individual besides that individual’s name, the name itself could contain information on the gender of the individual, just as a name contains information on the race of an individual (Fryer and Levitt, 2004). Just as with the racial discrimination on call-backs for resumes submitted in job applications, individuals may be more likely to get into the pool of candidates receiving serious consideration for the sorts of positions that lead to potential judgeships, i.e.getting their “foot in the door”, when they have a male moniker. Alternatively, nominal masculinity might matter when opinions are formed about a lawyer’s work, not face-to-face, but through the written word, such as through briefs or publications in law journals. If there is some gender bias in the citation process – that is, if authors are generally more likely to cite a writer with a masculine name than with a feminine name – then we might observe female lawyers with masculine names receiving more citations than female lawyers with femininenames, ceteris paribus, and having relatively fewer citations could affect career outcomes. The mechanism could be even subtler yet. There could be a subconscious preference for male names, even when the gender is known; jurists, clients, superiors, professors, legislators, etc., might just feel more comfortable with a woman called “George” than one called “Barbara”; in the context of the good old boy network, a woman with a male moniker might just feel more like “one of the boys”. Finally, it could just be that the parents who successfully nurture a girl’s ability are the same people who believe that bestowing a child with a masculine name would be advantageous in her future career path.

It all sounds pretty plausible, but the study is limited to demonstrating correlation. Also, fun fact: “The first Portia to be admitted to the South Carolina bar was Miss James (Jim) Margrave Perry in 1918.”

It’s worth noting, though, that this effect doesn’t seem to hold for the highest court in the land. Sonia, Ruth, and Sandra don’t sound particularly masculine to me.

HT: TaxProf Blog

After Monaghan fired Fr. Joseph Fessio, a conservative Jesuit priest who held found Ave Maria University, Rod Dreher criticized Monaghan’s “imperious hand” and called him a “thin-skinned tycoon.” Mark Shea accused Monaghan of “hubris.” And most damning of all, editor Mariah Blake of The Washington Monthly laid out a litany of Monaghan’s administrative and entrepreneurial sins. To wit, Monaghan completely disregarded everyone but his hand-picked administrative board in relocating Ave Maria Law School to southwestern Florida:

What started as rumbling discontent burgeoned into full-scale revolt. In mid-2006, the faculty held a vote of no confidence in the dean, and roughly two-thirds voted in favor. Alumni and students followed suit, with their own no-confidence vote and, later, a call for Monaghan’s removal as chairman of the board. But the uproar made little difference. The following February, the board voted overwhelmingly to move the law school to Florida.

Later, Blake reports that Monaghan’s administration resorted to smearing Stephen Safranek, a law professor who helped found the school:

Meanwhile, the administration began cracking down on agitators. “Monaghan wanted no dissent, so the screws began to get turned,” says Safranek. No one was targeted more aggressively than the former University of Detroit Mercy professor. Safranek, who was among the most outspoken in his criticism of the school’s management, was repeatedly disciplined, often for seemingly trumped-up offenses. At one point, he received a letter saying he had been found guilty of “uninvited” touching of “the person of one of the Law School staff employees,” an accusation that smacked of sexual impropriety. What actually happened only became clear much later, when the contents of Safranek’s employee file—including a written statement from the alleged victim—were released as the result of a lawsuit: Safranek had walked by the dean’s secretary while she was shuffling through the trunk of her car in the law school parking lot, tapped her on the arm, and said, “Good morning, Sarah.”

Based on these and other allegations, Safranek had his tenure revoked in July 2007. Since that time, he’s been hunting, without success, for another faculty position.

Perhaps worst of all, the Ave Maria brand has gone down the toilet. The law school is rated as one of the worst in the nation, and the university has been rocked by the high profile dismissal and firing of Fessio as well as arrests and resignations of its top administrators.

I confess to not having known much about Monaghan, although I heard over the last 20 years that he was billed by many conservative and some orthodox American Catholics as a great hope for the faith. So I was persuaded by the accounts of Blake and Dreher that Monaghan was an incompetent bully. But after reading and reflecting on Blake’s story and Dreher’s posts, I realized that their unflattering portrayal of Monaghan was one-sided; Blake, whose article is brilliantly narrated, was denied a request to speak with Monaghan and did not include the voices of his supporters, while Dreher acknowledged that his long post on Monaghan was one-sided. Then I came across a two-year profile of Monaghan in The New Yorker by the distinguished writer Peter Boyer (Click on and sign up here to read the full article). Besides featuring an extensive interview with Monaghan, it detailed the background and context of Monaghan’s Catholic philanthropy. The picture that emerges of Monaghan is entirely different and not surprisingly, more sympathetic to the pizza mogul.

For one thing, Monaghan has been an active Catholic benefactor. His money helped build a new cathedral in Nicaragua, which had been ruined by an earthquake in 1972, and it helped defeat an abortion-rights referendum in Michigan. For another thing, Monaghan seeks to do more than create a good Catholic university; he wants to build a great one that will influence the culture. As Boyer writes of Monaghan’s goals,

A university could train young people who would, in turn, train the next generation of priests, teachers, nuns, and school principals. “You’ve got to create a sort of critical mass,” he said. “If we can get priests who are turned on to the faith, then you have a good congregation. It’s a multiplication. If you have a good principal, you have a good school. If you have a good catechism teacher, you have a good child. So you’re not catechizing one person, you’re catechizing thousands and thousands. And not just in one locality but all over the world. That’s why the university is such an efficient thing–a tool to change the world.”

There are already more than two hundred Catholic colleges and universities in the United States, but, in Monaghan’s view, though some are great universities, none are great Catholic universities. Notre Dame has become the sort of institution that stages “The Vagina Monologues.” The Jesuit-run University of San Francisco offers students a minor in gender and sexuality studies. Some schools, like Manhattanville College and Marist College, have surrendered their Catholic identity. Other Catholic schools, such as Franciscan University, in Steubenville, Ohio (of which Monaghan was the principal benefactor), and Thomas Aquinas College, in Santa Paula, California, were resolutely orthodox but had no ambitions to become first-tier research institutions. Monaghan was looking for a high-level academic institution that was also, as he puts it, “seriously Catholic.”

If you’re a traditional or orthodox Catholic like me, you’ll be impressed by Monaghan’s accomplishments and ambitions for his faith. But there’s a problem. How should we square his successes and goals with his heavy-handed and bullying tactics? The jury, I think, is still out on this question. On the one hand, Monaghan treated those below him – administrators, faculty, alumni, students – more like Larry Ellison or George Steinbrenner than popes John Paul II or Benedict XVI. On the other hand, Monaghan created and built the first Catholic university and law school in America in 50 years.

Monaghan’s legacy is uncertain. It may well depend on whether Ave Maria University and Law School are successes or failures. If they succeed, he will join a long line of brilliant Catholic educators, from the founder of Notre Dame Fr. Sorin to those of the Jesuit and Christian Brothers colleges. If they fail, he will join a list of forgotten Catholic visionaries.

Image via Wikipedia

Yesterday marked the first case in front of newly-minted Justice Sonia Sotomayor, and the Court spared no controversy.  The case, Citizens United v. Federal Election Commission, gives the Court a stab at overturning two decisions (Austin v. Michigan Chamber of Commerce and McConnell v. FEC) which support the McCain-Feingold campaign finance law of 2003.

Three of the Court’s most conservative Justices — Scalia, Thomas and Kennedy — have all made clear that they’d want nothing more than to overturn the case law supporting McCain-Feingold. But, Chief Justice John Roberts and Justice Sam Alito have waited to address the issue — until yesterday.  And while not necessarily indicative of how the Court will vote, yesterday’s arguments seemed particularly harsh against the FEC — indicating that the Court will indeed change its rulings on campaign finance law.

How broad the Courts decision will be in altering the election finance laws is anyone’s guess, but Sen. John McCain, who has a clear dog in this fight, wasted no time in pouncing on Roberts’ predicted ruling in a joint statement with Democratic Sen. Russ Feingold:

It was just six years ago that the Supreme Court upheld the electioneering communications provision in McCain-Feingold and nothing has happened in that time to warrant the drastic step of overruling that decision. During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy.

Those are harsh words coming from a Republican to the Republican-appointed Chief Justice, and indicative perhaps of just how radical the Roberts’ Court is becoming.

Robert McDonnell talks with Jeri Thompson, wife of former Sen. Fred Thompson

Robert McDonnell completed his master’s thesis 20 years ago, and now he’s being vilified as a political dolt. The GOP’s candidate for governor of Virginia wrote “The Republican Party’s Vision for the Family: The Compelling Issue of the Decade.” After he told reporter Amy Gardner of The Washington Post about the paper, she found out that it contained, well, more than a few politically incorrect terms and ideas:

he described working women and feminists as “detrimental” to the family. He said government policy should favor married couples over “cohabitators, homosexuals or fornicators.” He described as “illogical” a 1972 Supreme Court decision legalizing the use of contraception by unmarried couples.

The thesis also contained other controversial ideas: public funding of private schools, protections for parents who spank their children, abortion restrictions, less rigid separation of church and state, and federal tax credits for child-care.

Cultural liberals got wind of these ideas and terms, and they whacked him for it. Steve Benen of The Washington Monthly called the paper politically “extreme.” Hanna Rosin dismissed the paper, implying that it was so politically stupid as to not require a serious response (an uncharacteristic response from a sober-minded writer):

You have to feel sorry for poor Bob. He didn’t write anything different than you could have read in 100 books—and no doubt college theses—during what was the birth of the Christian pro-family movement. It “was simply an academic exercise and clearly does not reflect my views,” he told the Post.

Mounting a political defense of all of the ideas and terms in McDonnell’s paper is impossible. Legalized artificial contraception is enormously popular, despite that its early adherents question whether it caused more harm than good. Using the term “fornicator” makes a politician look like a prude, although Andrew Sullivan invoked it to criticize an author in a New Republic column around the time that McDonnell wrote his thesis. And attacking working women, if not feminists, arguably is the single dumbest thing a politician could do.

McDonnell himself has backed away from his thesis, dismissing it as the work of a young man, even though he was 34 when it was finished. Yet McDonnell and his critics go too far in assailing the thesis tout court. Not all of his ideas were politically stupid. Or to borrow a phrase from the immortal Hud Bannon, “Don’t shoot all the dogs just cuz some of ‘em got fleas.”

Two of the thesis’ proposals might well be politically popular. One is that federal child-care subsidies are unwise, as they encourage young mothers to enter the workforce. This position did not enjoy a large constituency twelve years ago and it enjoys less of a one today. As my wife would be too happy to point out, most young mothers don’t want to work to full time; they want to work part time or not at all. As a 2007 study from the Pew Research Center noted,

To be sure, perhaps McDonnell as a 34 year old opposed young mothers working even part time. But unless someone is intrepid enough to travel to Regent University’s library and photocopy the thesis, we won’t know.

The other popular idea is that government policy should privilege married couples over singles. Or at least the idea is popular among certain scholars, thinkers, and politicians.

On the left, Mayor Gavin Newsom of San Francisco proposed a few years ago that the city spend $43 million to build family-friendly housing, one of the proposals from his family initiative. In the center, demographer Phillip Longman called for a “family-based social contract,” while scholar and writer William Galston urged repealing no-fault divorce laws for couples with young children. (In fact, at the time, Galston was President Clinton’s domestic policy advisor). And on the right, as Reihan Salam notes, many academics have argued in favor of pro-family policies.

Whether those proposals represent a groundswell for pro-family policies is hard to say. Certainly they challenge the idea that city officials should appeal primarily to members of the “creative class,” which is to say singles.

McDonnell is distancing himself from his thesis, so he likely thinks it’s politically radioactive. Don’t want to offend those Northern Virginia soccer moms! But it sure would be nice for him to defend the parts of his paper that are, you know, not just politically palatable but also wise policy.

A friend reminds me that for a long time, there was a tradition that, when possible, a Supreme Court Justice would retire when the current President was of the same party as the President who nominated you.  That was the case even when your judicial philosophy might have “drifted” from where it once was.

One of the best examples of this is Justice Byron White, who was appointed by John F. Kennedy, but who, by the time he retired, was one of the more conservative justices.  But, since White had been appointed  by a Democrat, he waited until another Democrat was in office (in this case, Clinton) to announce his retirement. The same is true for Justice Sandra Day O’Connor, who was nominated under Ronald Reagan, drifted to moderate or liberal, but still retired under George W. Bush. And it could also possibly be said of Justice Felix Frankfurter, who was appointed under Franklin Roosevelt and probably would have liked to retire under Dwight Eisenhower, but waited until Kennedy was elected (he ultimately suffered a stroke in 1962 which forced his retirement, but had been in poor health prior to that).

Running with the speculation, if Stevens retires now, it will make two justices in a row who clearly held out longer than they wanted (David Souter famously hated Washington and Stevens has been very, very old for a very, very long time) so that the President in office would be closer to their ideology rather than the party of the president who nominated them.

It’s no secret that Supreme Court Justice is one the most politicized roles in Washington — but it has also always been one of the most traditional and bound by custom. It would appear that the most recent presidency has caused even the Court’s tradition to unravel in the furtherance of political ideologies.

No public figure was more divisive in my family – or really, my father’s side of the family — than Edward M. Kennedy. None; no politician, priest, or poet compares. My uncle and namesake slapped on the back window of his yellow Ford Pinto a “Kennedy ‘80” bumper sticker. My dad invoked the words Ted Kennedy as if he had swallowed a sip of bourbon and attempted to pronounce the name of the foul-tasting brand.

My family’s reaction to him likely was not representative; as ours was a mostly pious clan of bourgeois Catholics, we viewed him as if he were a distant but famous uncle, a personage of consequence rather than just another politician. Yet my family’s dueling reactions curiously symbolized his career. Kennedy, for all of the hagiographic obituaries that the MSM writes about him, was a Janus-faced public figure. There was a Good Teddy, and there was a Bad Teddy.

The good Ted Kennedy did more perhaps to help the poor, disabled, and marginalized than any American politician in the last two generations. A partial list of the bills he sponsored or shepherded to passage reveals a breadth of support for groups that only Lyndon Johnson or Franklin Roosevelt could match: The bilingual Education Act; the Fair Housing Acts; the Age Discrimination Act; the South African sanctions; the Federal Disabilities Act, and the Children’s Health-Insurance Program.

The bad Ted Kennedy honored politicians who threatened the poor, disabled, and marginalized. When George C. Wallace in February 1974 announced his candidacy for a third term as governor of Alabama, he noted that several prominent Northern politicians had flown to the state capitol of Birmingham to kiss his ring. One of those was Kennedy, who contemplated running for president in 1976, a time when the South was still up for grabs. All of those Northerners, Wallace told his followers at a morning press conference, had but one message: “How great thou art in Alabama!”

The good Ted Kennedy was a responsible patriarch. He cared for the children of his brother Bobby after he was assassinated in 1968. He treated his Senate colleagues with uncommon thoughtfulness and decency, calling them right away when a family member had died or contracted a serious illness.

The bad Ted Kennedy was an outrageous cad. Forget Chappaquiddick, although it’s difficult given that he crawled out of the sinking car while young Mary Jo Kopechne sat inside. Kennedy reportedly cheated on his first wife from the moment the two were married; in December 1985 grabbed a waitress at Washington’s La Brasserie restaurant, picked her up from the table and threw her into the lap of friend Sen. Chris Dodd, whereupon he proceeded to rub his genital area against her; and in September 1987 screwed his blonde girlfriend on the floor of La Brasserie.

The good Ted Kennedy spoke eloquently for and supported the most vulnerable of all human beings. In a August 3, 1971 letter to a constituent, Kennedy made a case on behalf of the unborn that would make Randall Terry weep:

“While the deep concern of a woman bearing an unwanted child merits consideration and sympathy, it is my personal feeling that the legalization of abortion on demand is not in accordance with the value which our civilization places on human life. Wanted or unwanted, I believe that human life, even at its earliest stages, has certain rights which must be recognized – the right to be born, the right to love, the right to grow old.”^[1]

Those were no mere words. Kennedy backed them up. In a little-noticed vote in April 1976, he favored a joint Senate resolution to define personhood as beginning at conception.

The bad Ted Kennedy turned his back on the least of these. Not only did Kennedy by the 1980s come out in support of Roe v. Wade; he also supported taxpayer funding of abortion. His most consequential pro-choice advocacy was the 1987 Supreme Court hearing of nominee Robert Bork. Standing on the Senate floor, Kennedy assailed Bork as a jurist whose rulings would force women to resort to “back-alley abortions.” Kennedy’s verbal assault helped defeat Bork, who would have been a fifth vote to overturn Roe.

I have first-hand experience of Kennedy’s Janus-faced behavior. On January 23, 2003, I talked with him for a story I wrote for the late Crisis magazine. The article was about Catholic politicians, Democrats and Republicans alike, whose voting history contradicts Church teaching on core issues. Here is the relevant passage, about my interview with him off the Senate floor:

Kennedy left at 8:44 p.m. and headed toward the white marble steps. He still retains the Irishman’s thick shock of hair, although his face is puffy and he now waddles. I asked him about the Vatican’s doctrinal note on Catholic politicians. “Well, as I said the other day [at the National Press Club], I take my beliefs, I take my religion very seriously.… My religion has made an enormous difference to my family and my parents,” he said calmly, shuffling down the steps.

At this point we were on the first floor, about to head outside. I asked him how he re­conciled his liberal stance on social issues with the bishops’ view of Catholicism. By the time I finished my question, we were past the maple doors and outside, alone, in the cold northeastern winter night. He stopped and turned almost directly toward me. “Look,” he said, displaying that characteristic Ted Kennedy indignation. “I know who I am,” he said, pausing for half a second, “and what I believe.”

It was that first comment that hit its mark — rather predictably I conjured up images of his two assassinated brothers and imagined all the grief that he and his family had endured. I suddenly felt as if I had no right to question him. In terms of personal suffering, the gulf between us was as wide as an ocean. He walked away, and after dismissing me with a wave of his left hand, I thought the interview was over. I was wrong. Six or seven yards away and still obviously upset, he said of the bishops, “It’s their problem, not mine.”

Now that he’s passed from this side of paradise, his words are prophetic. Catholic prelates will need to decide how to send this most outsized of politicians to his eternal rest. Do they honor his good side, forget his bad one or acknowledge that, maddeningly, he was both?

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Alan Dershowitz is many many things: a legendary civil rights expert and attorney, a Harvard Law Professor, a prolific author (especially when it comes to that closest to him), and omnipresent political expositor. But he is most definitely not a Catholic.

So it’s a little surprising (ok, maybe not that surprising, coming from the man who wrote the book Chutzpah) to see Dershowitz throwing down the gauntlet with Justice Anton Scalia, over his recent dissent in the Troy Davis case, about which Dershowitz accuses Scalia of “Catholic betrayal.”

The Davis decision, which was issued on Monday, granted Troy Davis, a death row inmate, the right to present new evidence to prove his innocence. Justices Scalia and Clarence Thomas, were the lone dissenters in the case.

From Dershowitz’s article originally posted at The Daily Beast:

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”

Dershowitz insists that he ordinarily “would not include a justice’s religious views in a criticism of a judicial opinion,” but that it is Scalia’s own discussion of the role of his faith in his rulings that opens the debate.

Despite his faith, Scalia’s feelings in favor of the death penalty are well-known and well-documented.  He once called Christian opposition to state executions “handiwork of Napoleon, Hegel and Freud” and said that “the more Christian a country is, the less likely it is to regard the death penalty as immoral.”

But while Scalia’s possible hypocrisy on the death penalty might be old news, Dershowitz has an excellent sense of timing.  The Davis decision has quietly breathed new life into the debate around the death penalty — and its interpretation through the Constitution. At the same time, the Court has become overwhelmingly Catholic — six out of the nine justices, with the recent inclusion of Justice Sonia Sotomayor. In this new environment, it’s hard not to wonder what role faith will , or will not, play in the Court’s decisions.

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With a vote of 68-31, the Senate confirmed the nomination of Justice Sonia Sotomayor to the Supreme Court. Only Sen. Ted Kennedy (D-MA) did not cast a vote in the confirmation, and 9 Republicans crossed the aisle to vote for Sotomayor. She is the first Hispanic to serve on the Supreme Court.

The confirmation was an unsurprising outcome in what had been a very smooth nomination and confirmation process, despite some antagonistic rhetoric from Republicans. In both her Senate Judiciary Committee hearings and Senate floor hearings, GOP senators referenced her “wise Latina” address, discussed Ricci as evidence of her activism, mentioned her role on the Board of Directors at the Puerto Rican Legal Defense and Education Fund, all while alluding to her support of quotas in affirmative action.

“The confirmation of Sonia Sotomayor brings us closer to realizing the goal of a more perfect Union,” said Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, on Sotomayor’s confirmation. “My vote to confirm Sonia Sotomayor is among those I am most proud to have cast.”

Despite the overwhelming confirmation, some conservatives took the 31 votes against Sotomayor as a sign of victory.

“One need only recall the mere three GOP votes against the elevation of Ruth Bader Ginsburg to the Supreme Court to know that the Republican leadership . . . and most of the party’s other senators deserve tremendous credit for refusing to be cowed by the ‘you better vote for the first Hispanic Supreme Court nominee’ attitude of the White House and Senate Democrats,” said Cur Levey, director of the conservative interest group, Committee for Justice

Conservative victory or not, Sotomayor’s confirmation does little to change the political balance of the Supreme Court as she will be replacing the liberal justice David Souter.

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It was a foregone conclusion going into this afternoon’s vote that the US Senate would confirm Judge Sonia Sotomayor as the ninth Justice and fill Justice David Souter’s seat on the Supreme Court. When I switched on C-Span2 in the morning, there were 64 committed yes votes, and Senate Republicans had already promised that there was no filibuster coming.

And now on a vote of 68-31 (Senator Kennedy not voting because he is not in Washington, but stated he would have voted Aye), our nation has its first Latina sitting on its highest court.

Congratulations, Justice Sotomayor. But this was easy. It won’t be next time. Here’s Senator Jeff Sessions, Alabama Republican and ranking minority member of the Senate Judiciary Committee, giving his closing remarks on opposition to the nomination.

How interesting is it that Senator Sessions chops at President Obama’s enunciation of the need for empathy on the bench, and then questions what’s in the heart of a nominee for the Supreme Court who numerous Republicans agreed is not a hardline activist judge. Senator Sessions devotes time in his speech to questioning Justice Sotomayor’s sincerity in ‘distancing’ herself from an activisit judicial philosophy she does not advance. He’s saying that he knows better what a judicial nominee believes than the nominee him or herself does.

So his key statement here is that, “It will now be harder, I think, to nominate activist judges.” Senator Sessions is promising that anyone that appears even slightly to the left of Justice Sotomayor will face a tough battle to confirmation to sit on the Supreme Court. No more water, fire next time.

In my post on Henry Louis Gates, Jr.’s arrest, several commentators questioned my interpretation of his “Yo mama” remark to Officer James Crowley. Elie Mystal and Eileen White Read said the remark was innocuous. Jessica Faye Carter questioned whether Gates uttered the comment at all. I concede that many interpretations of the phrase are possible, and that Crowley may well have interpreted it to mean something different from what I wrote.

Yet Crowley’s interpretation reportedly was not too different. In an interview with Greta Van Susteren, Crowley’s former boss said that Crowley spoke with him about the incident a few hours after it happened. According to Michael Giacoppo, Crowley said that he understood the remark to be an offensive term directed against Crowley’s mother:

VAN SUSTEREN: What was said about his mother?

GIACOPPO: Well, it appears that Professor Gates may have engaged in high school type tactics of, Your mama, your mother, and this, that and the other, things that would do when you were bantering as a high school kid. And to actually come out and insinuate that his mother has any role in this, and what his inference was, was…

VAN SUSTEREN: In what way, though? I’m having a hard time — the mother reference.

GIACOPPO: Well, Greta, maybe in Wisconsin, they didn’t use the term ragging on each other. Maybe they did. But this is…

VAN SUSTEREN: We were — we were rough on each other!

GIACOPPO: Well, all right. All right.

VAN SUSTEREN: But I mean, it’s, like, what did he say about his mother? It’s just that…

GIACOPPO: Jimmy said, If you want to speak to me, you need to come outside. I’m not going to stay in your home. I’m leaving. And he made reference, I’ll talk to your mama outside. In other words, giving him the rag, offensive term of your mother. And your mama this and that. Crossed the line there. So an apology owed. He owes it to Jimmy’s mother, anyways, to bring her into this because God knows (INAUDIBLE) her out on this, too.

VAN SUSTEREN: Did Jimmy tell you that, that first conversation that was about two hours (INAUDIBLE) the incident, the reference to the mother?

GIACOPPO: Oh, yes. Absolutely. And he said, I was leaving. This guy came out on the porch and he forced my hand. And I would have been down the stairs and we would have been gone, but he just kept on and kept on. And he even brought my mother into it. And I warned him and said, If you don’t go inside, you’re going to be arrested for being a disorderly person and just breach of the peace. And then he wasn’t paying attention. He was carrying on.

And Jimmy actually took his handcuffs out and said, Do you understand what I’m saying? Next warning. Go back inside, stop it, and we’ll leave, it’s over, or you’re going to be arrested. He didn’t. Handcuffs go on.

So Crowley was offended by Gates’ remark and thought it crossed the line. Did Gates’ term represent “fighting words”? It is reasonable, I think, to believe that Crowley believed they did and that any ordinary male would think of them as such; and not just as an extremely angry remark as Rick Ungar contends. That’s different from saying that Crowley automatically should have construed them as fighting words.

Senator Patrick Leahy, the committee’s chairman, kept his words brief in explaining why he believed Judge Sotomayor would practice law and not politics from the nation’s highest bench. And Senator Jeff Sessions, the ranking Republican member on the committee, didn’t seem to have his heart in making a major issue of his opposition to her serving on the court. At the outset he acknowledged the lopsided 12-7 majority-minority ratio on the committee before restating the  ‘wise Latina’ criticism that never quite got anyone in America inflamed. And with Senator Lindsay Graham, the South Carolina Republican who campaigned fiercely at Senator McCain’s side in 2008, deliberately calling out his GOP colleagues for using the wrong standard to evaluate judicial nominations, making a moral case against Sotomayor will be hard.

However, Sessions did show some willingness to bare his teeth, stating that Sotomayor’s legal opinions in some cases were not sufficiently “thorough.” He seemed to be implying not only that he questioned her legal philosophy, but that she lacked the intellectual mettle to serve alongside the court’s other 8 Justices.

And while I joke above about the distance between actual racism and ‘reverse racism,’ we seem to be in something of a racial summer, between the birthers, Professor Gates’s false arrest, and Sotomayor’s nomination bringing tendentious racial issues into the season’s sunlight. Consider, for instance, that while Senate Republicans are not expecting to need to maintain party discipline in this case, according to Politico, several Republicans who voted for Judge Sotomayor in 1998 for her circuit court appointment are now planning to oppose her on principles that didn’t seem to be an issue 11 years ago.

Will a small group of Republicans decide that Judge Sotomayor’s nomination, which they are unlikely to defeat, is an opportunity to score some race-baited points with elements of their base who are uncomfortable with a changing America? Answer our poll and tell us what you think in the comments below.

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Sonia Sotomayor’s performance so far, while innocuous enough to make her confirmation all but assured, has generated some real controversy–but surprisingly, the most vituperative critique has come from the left. Writing on the blog of the liberal American Constitution Society, law professor Louis Seidman wrote:

I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

The Sotomayor strategy has, thus far, been to basically mimic the John Roberts confirmation strategy: pretend you know nothing about nothing. Obama never asked her opinion about abortion rights, so of course she doesn’t have one. A judge’s job is like an umpire. In other words: feign ignorance. It’s a smart strategy, politically (which Seidman concedes in a follow-up post). But what if it’s not just a political strategy? What if it’s what she actually believes?

I’m not going to try and divine what she’ll actually do on the Court. It goes without saying though that there’s a long line of justices who were presumed to be of one ideological inclination and then, for one reason or another, proved themselves to be something quite different altogether. So yes, it’s certainly within the realm of reason that she’ll be less a liberal than a moderate. During yesterday’s hearings, I couldn’t help but think about how eager she was to compare herself to Justice Souter, whom she’s replacing. Again, that’s a smart political strategy; she’s letting the committee know that she doesn’t intend to upset the balance of the court. The committee doesn’t have to believe that–and they most likely don’t–but simply saying that, proving herself to be less than a fire-breathing liberal, means she’ll probably get some Republican votes. But again: it might also indicate that she doesn’t in fact intend to upset the balance of the court.

In Washington, sometimes people are so eager to look for political calculation that they mistake sincerity even when it’s staring them in the face. I don’t know if that’s the case with Sotomayor. What I do know, however, is that most liberals haven’t been as demanding as Seidman. Obviously, politics has a lot to do with it. But my half-educated guess is that Sotomayor’s biography also has a lot to do with it. For liberals, her bio is the stuff of gold. We adore her up-by-the-bootstraps story, and the fact she’s blazing a trail for Hispanics and bringing more diversity to the bench is exciting. Barack Obama’s bio has the same effect–he’s the guy who wrote two memoirs before he turned fifty, after all.

Barack Obama’s success has been predicated on his ability to sell his life story. Sotomayor’s elevation to the court will be mostly predicated on the same. But it may not be enough. For Obama, he’ll have to live up to his promise; so will Sotomayor. Middling moderates, the type perfected by David Souter and the type that Obama becomes in his lesser moments, did not win this past November, and the November before that. A recharged, more liberal Democratic Party did.

Biography is destiny, goes the old saying. No. What you do with your biography is what matters.

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Two days ago, I wrote that it would be fun to watch Republicans try to avoid pissing off the Latinos (and non-Latinos who don’t like it when people are racist towards Latinos) while going after Sonia Sotomayor. This balancing act really isn’t all that difficult for people who don’t actually hold any racial animus. But predictably, the Republicans have failed at this task. Though it is not for the reasons most people are talking about.

A lot of people want to focus on Senator Tom Coburn’s (R-OK) Ricky Ricardo “you got some ’splainin’ to do” joke that he unleashed at Sotomayor’s expense yesterday. Don’t get confused by the small potatoes. The only other “Latinos” Coburn seems to know off the top of his head are Speedy Gonzales and Zorro. Either of those cultural references would have been worse.

But really, racism isn’t about what people say. It’s about how people think. And when you look at how some Republicans are thinking about Sotomayor (and the black and brown peoples of this country), that is where they do themselves some real damage.

Ladies and Gentleman, after the jump I present Pat Buchanan and his plan for “handling” soon-to-be Justice Sotomayor.

On his personal blog Pat Buchanan wrote a piece titled: “How to Handle Sonia.” He writes some pretty incendiary things, like: “Sonia is, first and foremost, a Latina,” and ” [Sotomayor's] career bespeaks a lifelong resolve to discriminate against white males to the degree necessary to bring about an equality of rewards in society.”

But Buchanan wrote that just for shock value. I’ve never met him but I’ve watched him on t.v. forever (hat tip: The McLaughlin Group). Don’t get me wrong, I’m sure he meant what he wrote, it’s just that Pat Buchanan writes and says those types of things just to make sure people read — but fail to engage with — the truly aggressive point people should be offended by. Here’s the real money quote Buchanan was hoping people would accept but gloss over:

In 2008, Hispanics, according to the latest figures, were 7.4 percent of the total vote. White folks were 74 percent, 10 times as large. Adding just 1 percent to the white vote is thus the same as adding 10 percent to the candidate’s Hispanic vote.

That is how you say “I don’t care about brown people” without letting an entire city full of them drown.

What is the point of writing those seemingly innocuous demographic numbers? It’s to remind Republicans that they don’t need the Hispanic vote. And if they don’t need it, then why the hell should they care about what Hispanics think about them? Why should they? In the logic of Republicans like Buchanan, it honestly doesn’t matter if an entire race of people finds them palatable or not. Oh, they are happy to have their votes if racial (or sexual) minorities will give them. But they are not about to stand for the miscegenation of the party platform with views that don’t respect the sovereign status quo of the white male power structure. It has been their playbook since the civil rights era.

One way I know this is because the Northeastern Republican party (you know, the ones who are not supposed to be prejudiced) has failed to do any significant outreach towards minorities in the Northeast for at least 40-odd years. I’m middle class! I love money, and America, and I know a lot of black and brown people who do too.  But Republicans can’t compete for the black vote even in the Northeast. That is a ridiculous failure of the Republican platform and a stunning indictment of the Republican ideology.

Yet if I went to Pat Buchanan’s house and explained to him that I’m open-minded and willing to listen to new ideas, but I told him that the consistent and subtle prejudice espoused by some members of his party turns me off — he’d probably tell me it was my fault. I should just “get over” the systematic slavery and oppression of my people and act like, I don’t know, Clarence Thomas. Then, when I punched him in the nose, he’d charge me with a reverse hate crime and blame it on Obama.

Minorities read the tea leaves and hear all of that demeaning disregard for their heritage when people like Pat Buchanan say “adding just 1 percent to the white vote is thus the same as adding 10 percent to the candidate’s Hispanic vote.” What, you thought those numbers were an accident? No. Read it as you would if you had been hearing this crap your entire life: 1 white voter is equal 10 Hispanic voters.

To some Republicans, those numbers read like a basic political strategy. Saying “wise Latina” 50 times sounds like they are making a valid political point. Saying “you have to do some explaining”  [grammar corrected] in an Oklahoma version of a stereotypical Latino accent is just a “cultural reference” to a television show millions of Americans loved.

But having empathy with a group of people that has a different set of American experiences? Republicans like Pat Buchanan don’t even want to do that. They don’t think they have to.

Judge Sonia Sotomayor answers a question during the third day of her confirmation hearing (Win McNamee/Getty)

As I wrote earlier this week, there’s a huge glut among the minority witnesses of anti-affirmative action experts testifying at Sonia Sotomayor’s confirmation.  But in further comparing the witness lists between Sotomayor and the two most recent nominees, Justices Sam Alito and John Roberts, there’s another striking difference: the number of non-lawyer witnesses.

At Roberts’s hearing four years ago, just 6 out of the 33 witnesses were non-lawyers, and at Alito’s hearing, only one witness was neither a lawyer or a congressperson. Not only was Alito’s hearing heavy on legal credentials, it had high-powered ones: 7 past and present judges and a former solicitor general testified at Alito’s hearing.

In comparison, there is just one past judge, and no solicitors general or attorneys general on Sotomayor’s witness list  – and a whopping 10 witnesses who don’t have a law degree at all.

The disparity illustrates where the qualms have been with Sotomayor’s nomination, or rather, where the qualms aren’t: her legal qualifications and fitness as a judge. Tomorrow and Friday, baseball pitchers, firefighters and mayors will all testify for and against Sotomayor, but what authority their words will carry is anyone’s guess.