Jay Reding.com

President Obama has picked Judge Sonia Sotomayor of the Second Circuit as his nominee to replace David Souter as Associate Justice of the United States Supreme Court. Judge Sotomayor was considered the front-runner for the spot, along with Judge Diane Wood, Homeland Security Secretary Janet Napolitano, and Solicitor General Elena Kagan.

Ilya Somin has a detailed critique of Judge Sotomayor’s record and finds her minimally qualified. As he puts it:

…[H]er record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee’s qualifications are likely better than Harriet Miers’ were; but Miers’ nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor’s.

It would be hard to find a less qualified nominee than Harriet Miers, but Sotomayor does not strike me as a strong candidate. She is, to be sure, qualified for the position, but a seat on the Supreme Court is the pinnacle of the American legal profession. The Supreme Court has housed some of the greatest minds in the practice: Oliver Wendell Holmes, Felix Frankfurter, Hugo Black, Robert Jackson, and even the current Court has incredibly talented judges such as Stephen Breyer (on the “left”) and Antonin Scalia (on the “right”). Does Sotomayor match up with those legal minds? Her record, at least on a cursory glance seems to suggest not.

Judge Sotomayor is not widely considered to be an expert or leading light on a particular field of law, as Stephen Breyer was in administrative law. She has not shown the intellectual caliber of someone like Antonin Scalia or Ruth Bader Ginsberg. Instead, she seems to have been picked because she is a female Hispanic with an interesting life story that meets the basic qualifications.

Now, that is not to say that Judge Sotomayor is an intellectual lightweight—generally one does not get nominated for a Circuit Court of Appeals or even graduate from a top-tier law school without possessing a strong intellect. Moreover, Judge Sotomayor is no less qualified than the Justice she is replacing—which is damnation by faint praise given that David Souter was the least intellectually gifted and least competent member of the Court.

It should not be surprising that Obama picked a left-wing candidate. That part was a given. President Obama was not going to pick out a candidate more conservative than the decidedly liberal Justice Souter. Her personal ideology should not be at issue: Justices Breyer and Ginsberg were both strongly liberal judges, but were well-qualified nominees whose nominations were consented to by the Senate in a bipartisan manner.

However, as Prof. Somin adeptly points out, her judicial philosophy is a legitimate reason for combatting her nomination:

I am also not favorably impressed with her notorious statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.

The role of a judge is to dispassionately and fairly apply the law without preference or bias. It remains an open question whether Judge Sotomayor will follow the law or undermine the rule of law by giving preference to those based on gender, race, class, or her own personal feelings. If it is the case that she will, respect for the rule of law demands that the Senate refuse to consent to her nomination.

Judge Sotomayor was not the worst pick that President Obama could have made (Secretary Napolitano was the least qualified of the four contenders), but Judge Sotomayor was not as qualified as Judge Wood or Elena Kagan. However, politically, Sotomayor may be the more confirmable.

In the end, President Obama could have picked a legal heavyweight—but instead he picked someone based largely on personal rather than judicial qualities. Judge Sotomayor may be qualified to sit on the Court, but it is unlikely that she will be one of its brightest stars. Given that she is replacing the execrable Justice Souter, it is hard to see her being any worse. Still, there are liberal candidates, and liberal female candidates that President Obama could have nominated that would be stronger picks for the Court. It is likely that Judge Sotomayor will be confirmed, and probably on a bipartisan basis, but she is not the kind of distinguished jurist that will make a strong contribution to American jurisprudence. She will, however, be a reliably liberal vote on the Court, which seems to be President Obama’s primary criterion for picking a nominee.

Charles Krauthammer has a typically great column on the ongoing debate over “torture” after Nancy Pelosi’s denial that she knew anything about waterboarding. Pelosi, assuming that the liberal press would cover for her, has now gotten caught up in a web of her own lies. So much so that the press has the scent of blood in the water:

Rep. Pelosi has ended up making a laughingstock of herself—her desperate attempts to backpedal from her own words are Clintonian in audacity without the skill of Slick Willy. Even the mainstream press has caught on.

Krauthammer puts the political impact of all this succinctly:

The reason Pelosi raised no objection to waterboarding at the time, the reason the American people (who by 2004 knew what was going on) strongly reelected the man who ordered these interrogations, is not because she and the rest of the American people suffered a years-long moral psychosis from which they have just now awoken. It is because at that time they were aware of the existing conditions — our blindness to al-Qaeda’s plans, the urgency of the threat, the magnitude of the suffering that might be caused by a second 9/11, the likelihood that the interrogation would extract intelligence that President Obama’s own director of national intelligence now tells us was indeed “high-value information” — and concluded that on balance it was a reasonable response to a terrible threat.

And they were right.

In the end, that’s correct. The “torture” issue will never have legs because the average American doesn’t share the sense of moral outrage that some have over that issue. In war, bad things happen. People get killed. Killing is a moral wrong, yet it is part of the nature of warfare. In the same vein, a practice like waterboarding may be credibly called torture, and torture is a moral wrong. Yet it is also a part of war. Pelosi doesn’t care about the morality of torture, she wants to score political points for partisan reasons. Some have a legitimate, rational, and moral objection to these practices, but they are a distinct minority.

In the end, Pelosi’s dissembling masks the real issue here. Waterboarding someone who was directly responsible for the inhuman September 11 atrocity is morally and politically different than the mistreatment of detainees. The abuses of Abu Ghraib and others are examples of acts that harm America’s reputation and dishonor our military. Yet the focus is not on those acts, but on the waterboarding issue. Were this a moral rather than a political issue, detainee abuse would be placed in its full context, rather than being used as a truncheon against the Bush Administration.

Pelosi’s lies are political in nature, just like this whole attempt at a partisan witch-hunt. Even for those who legitimately and truly oppose torture, tying their wagons to such a despicably partisan crusade only undercuts the seriousness of their position. If the anti-torture campaign will be spearheaded by outright liars like Rep. Pelosi, it will never be taken seriously.

Daniel Larison, of the paleo-con American Conservative takes a look at the woes of the GOP and the conservative movement and puts the blame on national-security conservatives.

It wasn’t that the Bush Administration went on an orgy of spending that made a mockery of conservative principles, or that social conservatives had a message that tended to alienate rather than include, it’s that the the strong national security message of the GOP caused them to lose:

Like their short-sighted cheerleading for a “surge” in Iraq, which failed on its own terms, and their subsequent carping this year that the Pentagon budget increase is too small, the mainstream right’s apologies for torture are not only morally bankrupt but also divorced from the reality of the intelligence, or lack thereof, these methods provided. Much as liberals needed their internal critics to challenge the welfare status quo over the last three decades, conservatism desperately needs similar internal dissent concerning the warfare state. But there is almost none.

One reason for the lack of dissent and accountability is that the majority of the GOP was deeply implicated in supporting and defending the war in Iraq, the signature failure of national security conservatives. To a large extent, the party has defined itself around the ideological fictions used to justify and continue the war long after the country had turned against it. This process was aided by the disappearance of antiwar Republicans in Congress. Never numerous in the first place, most have been replaced by Democrats during the past two cycles.

Now, this argument is wrong, but it isn’t fundamentally wrong. It is wrong on the facts. The surge did work, it worked better than had been expected, and as a testament to how well it worked, the Obama Administration has not disavowed it. President Obama, were the Iraq issue as toxic as it is claimed, could have withdrawn all U.S. troops ASAP. Instead, Obama’s war strategy is not that much different than what a President McCain’s strategy would have been—a gradual and conditional withdrawal over the next year to two years. Moreover, the Obama Administration is hardly rejecting the idea of a hawkish foreign policy. During the debates, Obama needled McCain about getting bin Laden. Hardly the act of someone who wants to push for a more restrained war. Obama has been sending more drones into Pakistan, even though such actions may be dangerous. Rather than de-escalation, Obama plans to put more troops into Afghanistan and has signaled a muscular U.S. foreign policy.

The truth of the matter is, doves don’t win elections in the U.S. Muscular foreign policy is widely accepted by both political parties in the United States. The idea that the GOP lost because they embraced “hegemony” is something only someone inside the intellectual bubble of academia could take seriously.

Moreover, Larison divides the GOP into three wings: social, fiscal, and national security conservatives. The reality is that both social and fiscal conservatives also tend to be national security conservatives. There isn’t a separate wing of conservatives that believe in a strong national defense but not social issues or fiscal ones. Rather, both socially-minded and fiscally-minded conservatives tend to be interested in national security issues. That’s why it’s not that surprising that Evangelicals tend to be supportive of “torture” against suspected terrorists—there is no hard and fast line between social conservatives and national security conservatives. The Reagan coalition was largely built around national security issues, and a strong national defense has been one of the common issues shared by a vast majority of Republicans and conservatives.

There is, however, an element of truth here as well. The GOP lost in large part due to the war in Iraq, a war that was never convincingly explained by the President and suffered from poor management from 2003–07. The “surge” was the product of the Administration finally listening to the people fighting the war rather than dictating from the top down. President Bush never convincingly explained why we were in Iraq so long and why the sacrifice of American blood and treasure was worth it. There was truth in the adage that we were “fighting them over there rather than over here,” but that logic was never followed through.

The GOP has many problems, but “interventionist” foreign policy is not one of them. The Obama Administration continues to play lip service to the idea of a more “humble” foreign policy while still engaging in interventions abroad. Isolationism has not played a major role in U.S. politics since the end of World War II, and for good reason. America’s superpower status demands world leadership, and we can’t have one without the other. If the GOP becomes a policy that abrogates its positions on a muscular U.S. foreign policy, they will lose. While Iraq hurt the GOP in 2006 and 2008, the GOP’s foreign policy positions helped re-elect President Bush in 2004 when Kerry’s weakness on national security proved to be fatal.

The real lesson here is that if you’re going to fight a war, fight it well and keep the American people fully engaged in the conflict. To argue that the lesson conservatives should learn from the last election cycles is to abandon a deeply-held and popular principle of conservatism and embrace a discredited and dangerous isolationism is to learn exactly the wrong lesson.

Robert Samuelson has a great piece on President Obama’s counterproductive bias against domestic oil and gas production in favor of unrealistic “green” jobs:

In 2007, wind and solar generated less than 1 percent of U.S. electricity. Even a tenfold expansion will leave their contribution small. By contrast, oil and natural gas now provide two-thirds of Americans’ energy. They will dominate consumption for decades. Any added oil produced here will mostly reduce imports; extra natural gas will mostly displace coal in electricity generation. Neither threatens any anti-global warming program that Congress might adopt.

Encouraging more U.S. production also aids economic recovery, because the promise of “green jobs” is wildly exaggerated. Consider. In 2008, the oil and gas industries employed 1.8 million people. Jobs in the solar and wind industries are reckoned (by their trade associations) to be 35,000 and 85,000, respectively. Now do the arithmetic: A 5 percent rise in oil jobs (90,000) approaches a doubling for wind and solar (120,000). Modest movements, up or down, in oil will swamp “green” jobs.

Samuelson assumes that the White House is interested in common sense—they’re not. What the White House cares about is what all politicians care about—catering to their constituencies. The reason why Obama does not favor more domestic energy is because there’s no political upside to it for him. Obama can’t afford to annoy the environmentalist lobby that plays to American’s worse environmental fears. If he did, he’d risk losing political support.

Even though domestic energy exploration makes sense in terms of energy policy, national security, economics, and even environmentally, none of that means anything. It won’t play well politically, so it is dead on arrival.

That’s the way our government works in the 21st Century. For all the talk about “hope” and “change” the Obama Administration is as nakedly political as any other, and a politically unpopular program will not be enacted no matter how beneficial the results, and a policy that is economically ruinous but politically popular will always win out. It’s Reding’s Second Law of Public Policy—the best policy will always lose out to the most politically popular policy.

President Obama could show real leadership by dramatically increasing domestic energy productions. But “drill baby drill” was the motto of the other side, and with the worldwide recession pushing oil prices down, there won’t be a serious political demand for more domestic energy until the next crisis hits and it’s far too late.