The Umpire, the Wise Latina, and the Cabinetmaker

scraper_oblique_rearThe confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative.  The public tuned in expecting a discussion of the nominee’s qualifications and a debate on the role of the Supreme Court in our constitutional system.  What they got, instead, was a battle of metaphors.

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

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Sarcasm and Public Employment Don’t Mix, Part Deux

GavelBack in my previous blogging life, I wrote about a case by the 11th Circuit, Mitchell v. Hillsborough County, No. 05-12207 (11th Cir., Oct. 31, 2006), which involved a county employee who made satirical remarks about one of the country commissioners, and got fired for it.  In “Swift Would Be Ashamed” from 2006, I wrote about the facts of that case:

Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname “Vagi” or “Gina”?

I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don’t agree at all that this is not speech on a matter of public concern.  As Robert [Loblaw] points out, that would be like saying Jonathan Swift’s Modest Proposal was really about cannibalism.

The 11th Circuit found that Mitchell’s speech was not a matter of public concern, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.

Well, the humor of the federal courts has not improved in three years.  Not even in my hometown. 

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The Sotomayor Hearings — What We Can Agree On?

Here is something that we can all agree on. Maybe. Over at PrawfsBlawg, Howard Wasserman of Florida International says that the Sotomayor hearings have been “inane and meaningless.” This has been a widely shared reaction among liberal legal academics and lawyers. They are disappointed in (even if they are willing to excuse) her retreat into a caricature of judicial restraint. They are put off (even if they are willing to rationalize) the fog of platitudes and non sequiturs with which she has responded to questions.

Here’s an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the Fourteenth Amendment: 

Continue ReadingThe Sotomayor Hearings — What We Can Agree On?
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