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On 1 May, Justice Souter confirmed some long running rumors and formally announced he was preparing to retire.  Before the ink was dry on his signature, the game over his replacement started.  No one was nominated for the position yet, of course, but a number of people were preparing to skewer whoever was so anointed as other prepared to defend them.  It was good old-fashioned tribalism made into a bizarre ritual performance.

What’s the point of this game?  I have no idea, but I know who is playing it well.  The nomination was a potential problem for Obama because he had to both please supporters of many stripes while not giving too much ammunition to opponents.  His pick, Judge Sotomayor, was perfect in just about every way imaginable for many reasons.  Her long record proves she is qualified, she is a Latina, and she is very outspoken.  In fact, I find her remarkable bluntness and good sense of humor to be very refreshing.  But making an excellent pick only goes so far in Washingtoon – you have to play the game.

The first sign that this was being played well came when Obama told the world about his pick.  He wanted someone with intellect and empathy – a pair of virtues that are unique enough to Judge Sotomayor that he clearly was thinking of her from the start.  The New York Times showed its hand by running on 14 May an extended speech by Judge Sotomayor that displays these same qualities.  Clearly, the Times is living up to its role as the place where the Democratic establishment can leak stuff as a way to loft trial balloons, a role that I find amusing (and very useful to know).

When the choice was announced, the attack mechanism went into full tilt on the right, but they were already behind since Obama was controlling the game.  There is a clip where Judge Sotomayor states that the Appeals Court “makes policy”, but the extended version of it shows that she was displaying her amazing candor in a way that can only be called refreshing.  There is little chance that what is said on the ‘net will have any effect on Senators, the only people who matter.

Has that quieted the assaults on this “activist” who makes “policy” from the bench?  Of course not.  The game is still on for one very good reason:  this is tribal.  What is important here is not necessarily winning, but losing in the right way.  A good politician never allows a vote to take place until they know how it will turn out so that they know how to position themselves; if you’re sure you will lose, you make sure everyone knows how you refuse to abandon your principles.  A strong stand like this is a war cry for the tribe to gather and to keep them together for the next battle.

This will all keep on because it is not about who sits as a justice of the Supreme Court.  One side will fight to demonstrate their principles, and the other will engage them for the same reason.  That’s what the game is really all about.

Obama’s game is already winding down.  He made sure that everything happened on a quiet week when the coverage would be slow and the world would know his pick on her own terms.  He won by neutralizing the game.  That doesn’t stop the game from playing out, but it strips it of any real meaning.  For those of us who see no point in this game, we’re left to revel in how very well Obama practices politics.  On to the next round!

4 thoughts on “Justice

  1. You sir are a good and very disciplined writer. I haven’t been following this nomination much my wife is much more inerested in such matters.
    One theory I’ve heard from an ex senator is once such informal counting is done (pre actual voting) the minority party allows a couple of senators to switch votes so they seem more moderate especially if they have a close election coming up. Also some votes are rather meaningless so moderates jump into the popular camp. Oh well. Will be interesting to see if Almanac has their law school prof./lawyer panel on tonight.

  2. On a completely different note I am reading a mongolian /chinese book you all might really like. Its called Wolf Totem and it is about the nomadic grassland lifestyle. Keeping a balance between the wolves, the deer, and the humans/domesticated animals. It starts out with a lot of action with some philosophy and currently is getting more philosophical.

  3. A wolf takes care of the pack and the pack takes care of each wolf. They stick together which makes them such formidable foes. Sometimes the howl of the prime male will draw a hundred wolves into battle. (?) There used to be big cats out there but they were driven off bu the wolves.
    “Back in the time of Ghenghis Khan thats when the mongols really learned from the wolves. Every tribe came together like spokes on a wheel of arrows in a quiver. Their numbers were small , but tthey had considerable power, and every one of them would have gladly given up his life for their mother, the grassland…Our downfall came when we lost that sense of unity. Now it’s tribe against tribe, individual arrows fired in anger but easily defected and broken.

  4. Pingback: Dia de la Raza « Barataria – the work of Erik Hare

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