(The Return of) Ignatz, by Sam Heldman

Wednesday, January 15, 2003

Some have thought that I am too complacent or easily-dejected, in my doubts about a filibuster on Judge Pickering. But now that the liberal blogosphere's attention has turned to Sixth Circuit nominee Jeffrey Sutton, you can see at least why I want to reserve strength for more practically-important yet more difficult battles.

Sutton is the subject of a more important battle because, being in his early 40s and brilliant, he would have a major impact on the course of the law for the next few decades if confirmed. He is the subject of a more difficult battle because he's presumably got no old-time racism in his past, nor any other obvious personal failing. Instead, this will have to be fought on explicitly ideological grounds involving some complex legal issues: that he has made it his life's work thus far to press very hard in moving constitutional and statutory civil rights doctrine to the "right" - i.e., to make it more difficult in myriad ways for aggrieved individuals to obtain redress for the injuries they suffer at the hands of government and corporate actors. He makes no bones about this, really, and that at least is to his credit: he admits that he loves and believes in these States' Rights arguments, and therefore in the disemboweling of civil rights law in various ways. This is not just a matter of a lawyer faithfully representing a client; Sutton is a "cause" lawyer, and there's nothing inherently wrong with that, but one's chosen "causes" are certainly quite relevant in determining whether one should be given massive governmental power.

There is, obviously, every reason to expect that his beliefs will remain the same if he wears a robe rather than a suit. And there are, of course, further battles yet to be fought over the course of civil rights and constitutional law; there is every reason to believe that Sutton would be intellectually disposed to agree with the Federalist Society's next wave of arguments, whatever exactly they may turn out to be. I know that there are some who believe that judges' ideology has little impact on their decisions; I am not one of them. I know that there are some who believe that judicial nominees should be confirmed so long as they are competent and honest; I am not one of them. I believe that this nomination, of a judge who would have substantial and long-lasting impact on the ideological/political direction of the federal courts, warrants every opposition that can be mustered under Senate rules.

posted by sam 1:21 PM 0 comments


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