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: 

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Politics as Total War

A few years ago, a Department of Defense official called for a boycott of tony law firms that represented — on a pro bono basis — Guantanamo detainees. He was roundly — and I think justly — criticized.

But his view of politics as total war — something to be imported into nonpolitical walks of life — seems to be gaining currency. Earlier this year, One Wisconsin Now organized a phone campaign in which it urged its supporters to call and complain to a large local law firm about the pro bono work of one of its young associates. This young woman was apparently donating her time in support of Wisconsin’s marriage amendment. The objective was to use a law firm’s natural desire to avoid controversy and her economic vulnerability to shut her up and deny a party the legal representation of its choice.

Paul Soglin’s WMC Watch and full-court press for disclosure of donors to political conduits is concerned, at least in part, with a desire to place pressure on businesses that don’t behave politically in much the way that Epic Systems forced a contractor off WMC’s board.

Is there something wrong with this? Shouldn’t we all vote with our pocketbooks? Isn’t the personal political? 

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Anatomy of an Op Ed

dukeellington-anatomyI authored an opinion piece in support of Judge Sonia Sotomayor’s nomination to the Supreme Court that was published in the June 28, 2009 edition of the Milwaukee Journal Sentinel.  You can read the piece here (and you can read a “dueling” piece authored by Rick Esenberg here).

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

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