Brainiac Conspiracy

It's Only Identity Politics if You Aren't a White Male GOP Political Operative Working toDisenfranchise Minority Voters on Election Dayand Lying About it Under Oath Years Later

From the Post today, a three-course fiesta of Latin Identity Politics, Puertoriquena style! First up, the front page:

A few months shy of her 10th anniversary on the federal bench, Sonia Sotomayor flew to a law conference across the country from her native New York to give a speech that explored her ethnic identity and her role as a judge in strikingly personal terms.

She evoked childhood memories: pigs' feet and beans, the sound of merengue at family parties, Saturday-night bingo games with her grandmother calling out the numbers while the children used chickpeas to mark their cards.

Then she pivoted to her view of the judiciary, bluntly rejecting the argument of conservative legal thinkers that judges should decide cases purely on close readings of facts and law, excluding their own frames of reference. "Our gender and national origins may and will make a difference in our judging," Sotomayor told the audience at the University of California at Berkeley that day in October 2001. "Personal experiences affect the facts that judges choose to see. . . . I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

Pigs' feet and personal experiences! Caramba! Next up: The house polemicist who puts them together and leaps to the illogical conclusion:

Her ethnicity aside, Sotomayor is a conventional choice. The court will remain composed entirely of former appellate court judges. And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity.

Then again, this is George Will we’re talking about. Surely the Post’s Editorial Board takes a more reasoned and measured approach to Sotomayor’s judicial record:

Senators could ask her, then, how, when deciding a case, she balances the quest for objectivity with her personal experiences. They might also ask her views on judicial activism . . .

Judge Sotomayor has spoken about how gender, ethnicity and race influence a judge's views, and that should be one subject for her confirmation hearings. In a 2001 speech, she said: "The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. . . . Justice [Sandra Day] 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 that I agree with the statement. First, . . . 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."

And with that trifecta, the meme is etched in granite: That of the foreigner, raised in the Bronx a strange land on strange music and repulsive foods. An outsider, a woman of Latin-American ancestry who dares to think of herself as (gasp!) a woman of Latin-American ancestry. Who dares beyond that to think that the experiences that influenced her life may have had some residual affect on how she perceives and interprets the law, which is obviously cause for concern. Compare and contrast (via Greenwald) with the experiences of this respected strict constructionist:

I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

Ah well, de nada. The talking point has already been established. Sonia Sotomayor is not one of us, she doesn't identify as one of us, and therefore cannot be trusted to treat us fairly when ruling on matters of federal law. Why, all this narcissistic Identity Politicking® is enough for any great patriot to throw up his hands and tweet:

White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw. 32 minutes ago from TwitterBerry

Actually, Newtie, white man racist would be confirmed as Chief Justice of the Supreme Court by Republican alpha-male President.

Lito Pena is sure of his memory. Thirty-six years ago he, then a Democratic Party poll watcher, got into a shoving match with a Republican who had spent the opening hours of the 1964 election doing his damnedest to keep people from voting in south Phoenix.

"He was holding up minority voters because he knew they were going to vote Democratic," said Pena.

The guy called himself Bill. He knew the law and applied it with the precision of a swordsman. He sat at the table at the Bethune School, a polling place brimming with black citizens, and quizzed voters ad nauseam about where they were from, how long they'd lived there -- every question in the book. A passage of the Constitution was read and people who spoke broken English were ordered to interpret it to prove they had the language skills to vote.

By the time Pena arrived at Bethune, he said, the line to vote was four abreast and a block long. People were giving up and going home.

Pena told the guy to leave. They got into an argument. Shoving followed. Arizona politics can be raw.

Finally, Pena said, the guy raised a fist as if he was fixing to throw a punch.

"I said 'If that's what you want, I'll get someone to take you out of here.'"

Party leaders told him not to get physical, but this was the second straight election in which Republicans had sent out people to intellectually rough up the voters. The project even had a name: Operation Eagle Eye.

Pena had a group of 20 iron workers holed up in a motel nearby. He dispatched one who grabbed Bill and hustled him out of the school.

"He was pushing him across a yard and backed him into the school building," Pena remembered.

Others in Phoenix remember Operation Eagle Eye, too.

Charlie Stevens, then the head of the local Young Republicans, said he got a phone call from the same lawyer Pena remembered throwing out of Bethune School. The guy wanted to know why Charlie hadn't joined Operation Eagle Eye.

"I think they called them flying squads," Stevens said. "It was perfectly legal. The law at the time was that you had to be able to read English and interpret what you read."

But he didn't like the idea and he told Bill this.

"My parents were immigrants," Stevens said. They'd settled in Cleveland, Ohio, a pair of Greeks driven out of Turkey who arrived in the United States with broken English and a desire to be American. After their son went to law school and settled in Phoenix, he even Americanized the name. Charlie Tsoukalas became Charlie Stevens. "I didn't think it was proper to challenge my dad or my mother to interpret the Constitution," Stevens said. "Even people who are born here have trouble interpreting the Constitution. Lawyers have trouble interpreting it" . . .

Operation Eagle Eye had a two-year run. Eventually, Arizona changed the laws that had allowed the kind of challenges that had devolved into bullying.

Pena went on to serve 30 years in the Arizona State Legislature. Stevens became a prosperous and well-regarded lawyer in Phoenix and helped Sandra Day O'Connor get her start in law.

The guy Pena remembers tossing out of Bethune School prospered, too. Bill Rehnquist, now better known as William H. Rehnquist, chief justice of the Supreme Court of the United States, presided yesterday over a case that centers on whether every vote for president was properly recorded in the state of Florida.

In his confirmation hearings for the court in 1971, Rehnquist denied personally intimidating voters and gave the explanation that he might have been called to polling places on Election Day to arbitrate disputes over voter qualifications. Fifteen years later, three more witnesses, including a deputy U.S. attorney, told of being called to polling places and having angry voters point to Rehnquist as their tormentor. His defenders suggested it was a case of mistaken identity. (Emphasis added.)

Well hey, nothing racist about that---the fella was only trying to prevent Democrat voter fraud! Which in Arizona circa 1964 was some serious widespread problem, lemme tell ya. That alone doesn't prove any sorta racist sentiments, unless, you know . . .

Chief Justice Rehnquist served as a clerk to Justice Robert Jackson. The memo "A Random Thought on the Segregation Cases" advised Justice Jackson to affirm Plessy in future segregation cases, including Brown v. Board of Education. The memo stated, "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed." Plessy was later overturned in Brown v. Board of Education.

While under oath during his confirmation hearings, Justice Rehnquist denied that the memo reflected his beliefs at the time . . . Justice Rehnquist went so far as to attribute his statements to former Supreme Court Justice Jackson. Justice Jackson was deceased at the time and therefore unable to defend himself against these attacks. Elsie Douglas, Justice Jacksonís former secretary, defended her boss sharply and criticized Justice Rehnquist for smearing the name and reputation of Justice Jackson. Justice Rehnquist has been accused of perjury by several scholars for stating to Congress that the memo did not represent his beliefs.

Hmmm, do we see a pattern emerging here?

Justice Rehnquist while clerking for Justice Jackson wrote in a memo, "I take a dim view of this pathological search for discrimination. . . and as a result I now have a mental block against the case." In a second memo he wrote: "The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south don't like the colored people: the constitution restrains them from effecting thru (sic) state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head."

He tried to bully and intimidate native-born brownskins from exercising their constitutional voting rights. He argued repeatedly in favor of race segregation laws, and opposed any attempts by the federal government to intervene when black folk were, oh, like being lynched and stuff in the South. And when he was called to account for it it, he denied it all under oath. And we haven't even covered that deed to the house in Vermont with a restrictive covenant against "members of the Hebrew race." He didn't know about that one either . . .

But Sonia Sotomayor is a dangerous extremist, racist activist judge, because she . . . eats pigs' feet, and likes the merengue, and is a Latin female liberal. Like I said, it's only Identity Politics if you're not a lying Republican white guy.

(Update: Don't Santeria priestesses use pigs' feet for divination? You heard it here first, folks.)

---Vitelius

Monday Mondo-Judicial Thread

• Congratulations to Maria Tequila Sonia Sotomayor. Already we’ve been told that she hates America, and that’s good enough for the Baron already.

• On the subject, the Fox News GOP talking points on Sotomayor today contain this doozy:

Additional Talking Points

Justice Souter's retirement could move the Court to the left and provide a critical fifth vote for:

Further eroding the rights of the unborn and property owners;

Imposing a federal constitutional right to same-sex marriage;

And so on and so on etc . . .

Excuse me, but, er, hasn’t David Souter been one of the more reliably liberal justices on the Court for the last 20 years? I swear, it’s just like Ted Kennedy said about the Bush gang---these people don’t want to govern, they want to rule, and they will make up whatever shit they can in their increasingly futile attempts to marginalize anyone who isn't a loyal Drano drinker. Then again, it worked for them for awhile, but obviously, they're not quick studies when it comes to reading election results.

• And once more on the subject, wouldn't it be a nice change of pace to see a practicing atheist on the Supreme Court? Which I suspect is about as likely as a practicing Rastafarian on the court, I know, so I guess I won't hold my breath in anticipation.

• Not surprisingly, our state Supreme Court upheld Prop 8 today. Good to see that folks are already taking action instead of merely moping about it. And since we no longer have any functioning government in Sacramento, we might as well get used to a tidal wave of citizen legislation (i.e., ballot initiatives) in the coming election cycles. Unless we decide to call for a Constitutional Convention, which I frankly think is the only possible way to salvage the state at this point.

• And in case you wondered why we don’t have a functioning government anymore, how could we when Somali warlords leaders like this guy are running it?

"The voters sent a very clear message to Sacramento: Live within your means, cut spending, slash the size of government, get rid of the waste and the inefficiency and don't raise taxes," Schwarzenegger told a gathering of small business owners and their advocates in Sacramento.

Actually, Mensa Guy, 81 percent of the voters didn’t even bother to vote in your vaunted Special Election. And no spending cuts of any type were on the ballot either way.

Sigh. This is just the continuation of the seemingly-endless mainstreaming of right-wing economic principles that has metastasized throughout the entire apparatus of state government for the past 30 years, as this terrific post at Calitics reminds us. And the Democratic leadership in Sacramento seems as impotent as clueless as ever over it.

• Not to make excuses for wanna-be jailhouse jihadis, but what kind of cruel bastard do you have to be to work as an FBI informant these days?

• This excellent roundtable of economists, historians and businessmen on the State of the Financial Sector in the New York Review is stimulating reading, and while Krugman, Roubini, Soros et all make a plethora of pointed observations, leave it to an ex-basketball player to make the case for regulation, investigation, and (possibly) prosecution for fraud most succinctly:

It's not news that people are greedy. But we made conscious decisions not to put limits on that natural human impulse. What were the mistakes? In 1999, we allowed investment banks, banks, insurance companies to combine: we eliminated the Glass-Steagall Act, which prohibited commercial banks from operating as investment banks. Why was Glass-Steagall put into law? Because the last time we didn't limit greed we got into trouble, the Great Depression.

The second mistake was in 1999, the explicit decision by the Clinton administration and Congress not to regulate derivatives, in particular credit default swaps. In 2002 they were worth $1 trillion and today they're worth $33 trillion, and that decision not to regulate derivatives created the following sequence: you have mortgages; then a thousand mortgages are packaged and sold as a mortgage-backed security; a thousand mortgage-backed securities are packaged and sold as a collateral debt obligation [CDOs]; then a thousand collateral debt obligations are packaged and sold as a CDO squared; and insuring each one of those bundles are credit default swaps, which are a part of that $33 trillion. And our government deliberately decided not to regulate this chain of investments.

One result was that the 374 people in the London office of AIG who were responsible for AIG derivatives destroyed a company that had 116,000 employees in 120 countries. Why? Because there was no regulation at all.

The third decision was in 2004. The SEC allowed banks to go from 10 to 1 leverage to 30 to 1 leverage. And guess what? Once they were allowed to do it, they did it. So if we're going to look at the future, we might think of undoing those three mistakes.

Finally, we might want to remember that the chairman of the Federal Reserve is supposed to remove the punch bowl from the party when the party gets out of control. And that did not happen in the Greenspan years. The opposite happened.

So why didn’t we crack the books at AIGFP last fall, when we had the opportunity?

---Vitelius

Gotta-Read of the Week

Dan Abrams' interview with war criminals former AGs Ashcroft and Gonzales is so rich with buck-passing, excuse-making, scapegoating moments of moral relativism, it's almost impossible to know where to begin, so I'll just excerpt a typical passage. You can read the whole thing here, and it is well worth your time.

Abrams: Let me follow this. The U.S. military prosecuted our own troops for using waterboarding in the Philippines, tried the Japanese for war crimes for using it against the Allies and the U.S. troops in WWII. And yet, we’re suggesting that it’s not torture. [Applause]

Ashcroft: First of all, the word waterboarding can be defined in a lot of ways.

Abrams: Let’s talk about the definition that was used in these memos—this is a legal document—of the definition of waterboarding. “Lying on a gurney that is inclined with an angle of 10-15 degrees from horizontal, with the detainee on his back. . . head toward the head end of the gurney, cloth pasted over the detainees’ face, and cold water poured on the cloth approximately 16-18 inches—this is the definition. The question is—--

Gonzales: Dan, the opinions have been withdrawn. There are no longer binding position of the department . . .

Abrams: I understand that, but that doesn’t mean, as lawyers, we can’t sit and discuss whether this was a correct legal assessment. Because it seems to me, in my opinion, that it is impossible to explain how this particular procedure would not be considered torture. [Applause]

Ashcroft: Members of the department went and underwent the procedure.

Abrams: Once or twice, not 266 times.

Ashcroft: Many members of our military in training undergo the procedure---

Abrams: Once or twice.

Ashcroft: Were you there?

Abrams: No, the memos explain it. It’s once or twice.

A commenter named civitas provides the proper context to all the rationalizations:

It's really hard to believe this [Gonzales] guy got any school to give him a degree or any state to put him on the bar with such poor basic logic. Look, the technique is either torture or its not---that doesn't change regardless of the threat level or the results. You can argue whether the U.S. is justified to use torture in certain conditions, but to try and make a legal distinction that it ceases to be torture under those conditions is just moronic to the core. It's akin to a bank robber saying it's not theft if he really needed the money. Or a guy who kills his wife in a fit of jealousy saying it's not homicide because he thought she was cheating.

I think it's safe to say the Gonzales knows this too, and that's why, like Cheney, he's attempting to mount a PR counteroffensive before any more momentum builds for Holder to appoint a special prosecutor.

And what did Abrams take away from the interview? Well, he doesn't exactly say, in s any words, that Al Gonzales has the look of a guilty man, but . . .

When AG Gonzales first shook my hand it felt like he saw swine flu secretions in my eyeballs.

--Vitelius