Pop Quiz: Compare and Contrast Pres. Obama and Judge Sotomayor

Do you remember the final exam questions that started "Compare and contrast," and asked you to compare and contrast the foreign policies of Chester A. Arthur with those of Millard Filmore?

This weekend's guest Op Ed columnist, Eddie Torriale, was struck with the comparison of Barack Obama's speech to the NAACP (listen here) and the performance of Sonia Sotomayor before the Senate Judiciary Committee here (where at least some members think that "confirmation" means making sure a nominee will confirm all past precedents-- apparently unaware of the difference between "confirm" and conform.") Eddie Torriale is a member of the Torriale Bros. Intellectual Construction Company, along with his twin brother, Terry Torriale.

{For extra credit (these kinds of final exam questions always had extra credit) you can compare either Pres. Obama or Judge Sotomayor with Abraham Lincoln, because that's the person to whom the extra credit questions always asked you to compare someone. You must go beyond the obvious--they all grew up poor with poor future prospects and had to walk to and from school (or take the subway) five miles uphill in both directions, and that Lincoln and Obama were both typical products of rough and tumble Illinois party politics, That Judge Sotomayor was inspired by Raymond Burr's Perry Mason when she was young (when he won all of his cases--before he became too fat to stand up, and had to employ a wheelchair and become the chief of detectives) (Raymond Burr once voiced Lincoln in a 1956 radio program), and Mr. Obama's diction was inspired by actor James Mason, who played Captain Nemo in "20,000 Leagues Under the Sea" in which his character attacked a ship called the Abraham Lincoln. Ignore the obvious contrast with Lincoln that neither Obama or Sotomayor has a beard or appers on the penny.}

Op Editor Eddie Torriale writes:

This week the Chameleon in Chief President Obama spoke to the NAACP convention (you can see it here). He has been accused of trying to be all things to all people, and so far it worked well for him in the election where many people saw what they wanted to perceive in his campaign. But one group that was not so sure were those African Americans who questioned whether he was "black enough" to relate to them. So when he appeared before the NAACP this week, the president's mission was, in part, to get the people to whom he was speaking that he was "one of them." He spoke in the cadences and inflections of the traditional black church and earned their empathy.

Judge Sotomayor's mission this week was the same. She came before a group of mostly conservative white Senators to convince them she was not a hot tempered radical bent on rewriting the Constitution in her own image. Her mission was to assuage John Corwyn and assure Orin Hatch that she would honor the doctrine of stare decisis and the great Supreme Court precedents--like the Dred Scott v. Sanford, Buck v. Bell (mandatory sterilization for those with low IQs) and the Japanese Exclusion cases (concentration camps for those of different ethnic background we think might be up to something evil). In other words, she had to convince them she was really no more radical than John Roberts, who answered many of the same questions the same way. Did she agree her job was just to call balls and strikes and not to have balls and support strikes? Would she follow in the hallowed footsteps of Roger B. Taney, or would she be the next William O. ("Bill of Rights") Douglas?

Sen. Sessions was skeptical and quoted anonymous sources that said she was hot tempered, short tempered and quick tempered on the bench. Here is Jon Stewart's take on what anonymous sources had to say about Sen. Sessions. To be fair and balanced, however, here you can find some tapes of Judge Sotomayor questioning lawyers sharply on Second Circuit appeals so you can decide for yourself.

Kurt Vonnegut created the term "foma" for little white lies by which simple people all live. The first of a trifecta of Senate's foma displayed by the committee this week was that judges are just like umpires--calling balls and strikes, fair and foul, and (like appeals) winners and losers. That is, they make only binary determinations. In light of that foma, it is ironic that they were critical of Judge Sotomayor for issuing only a short per curium decision in Ricci v. DeStafano, when it took the Supreme Court 93 pages to exhaust what had to be written about the case. Judges are like umpires, the belief goes, who will have to determine if the infield fly rule applies to a factual situation in the game (or not), but they do not need to discuss it's origin, previous applications, and how it's history resembles the development of the common law (Something you can find discussed in this law review article).

The second foma that Senators espoused was that this was a non-political excursion into the beliefs of the nominee to see that she was qualified for the bench. Does anyone really believe that hokum, and do the senators even think that anyone is buying that line?

The third is that the judge must seek to apply to the 21st century's problems the original unified intentions reached and recorded (employing a sharpened feather on an animal skin) by a group of politicians of the late 1700's. A look at history (such as the debates on the repeal of the Judiciary Act of 1801) reveal that the founding fathers who wrote and adopted the Constitution could not agree on its intent or meaning--even on such fundamental subjects as whether or not the Supreme Court could review acts of Congress to see if they conformed to the provisions of the Constitution.

If a judge's mission is just to determine whether or not the ball crossed home plate, Senators ought to be replaced by opticians.
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For extra extra credit, compare and contrast the fashion sense and clothes budgets of Mary Todd Lincoln, Michele Obama and Sonia Sotomayor; with particular attention to a discussion of their favorite designers.