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War of words: a glossary to the debate over Sonia Sotomayor

May 29, 2009 |  6:00 am

The Obama administration is no stranger to the language wars, having found its voice on a variety of issues. Nor are Republicans exempt from the sugarcoating that accompanies the bending of a phrase.The_last_word_on_words

But for those of you who never met a euphemism you didn’t like, here is a political and linguistic Baedeker on the debate over the nomination of federal Judge Sonia Sotomayor to replace David H. Souter on the Supreme Court:

Activist judge — As far as conservatives are concerned, this is among the worst things any judicial nominee can be. An activist judge uses his, or her, position on the bench to make law rather than sticking to existing statutes and, especially, the Constitution. The problem, of course, is that one person’s vigorous activity is another’s caution. Don’t believe that? Just watch anyone cross a busy street in any major city. How you view the pedestrian’s enthusiasm depends on whether you are driving the car.

empathy — Both as a candidate and as president, Barack Obama cited this quality as one he really wanted for his choice for the Supreme Court. In general, he meant that the nominee should have the ability to feel the plight of ordinary people and to understand the possible impact of a judicial ruling. When Sotomayor spoke at the White House this week after her selection, she reassured everyone that she would be aware of the “real-world consequences” of her decisions. As the 1975 soft-rock hit made abundantly clear, “Feelings” is a very slippery standard indeed. One person’s heart-wrenching moment is another’s horror over being stuck in an elevator with an endless soundtrack. Any mention of real-world consequences also raises conservative concerns that a judge would issue a ruling beyond the circumstance of the pending suit and its law. Expect “empathy” and “feelings” to be use cautiously, if at all, at her confirmation hearing. But similar characteristics with other names might crop up.

Founding Fathers — They're those colonists who petitioned for their rights as Englishmen, then became hotblooded revolutionaries and founded the United States of America when their petitions were rejected by the mother country. Expect numerous mentions of these guys, especially in a debate over what was their original intent in the Constitution and whether current jurists should be bound by it. Pointless elementary school history, you think? Tell it to Sotomayor, who said that if confirmed, it would be a “profound privilege” to apply the principles set forth by the Founding Fathers to the questions and controversies the nation faces today.

Federalist Papers — The collection of papers written by James Madison (“The Father of the Constitution”), Alexander Hamilton (father of the Bank of New York and the New York Post) and John Jay (father of the Supreme Court and first chief justice of the United States). This is the work to which everyone turns in order to understand the deep thinking of the Founding Fathers. Ironically, much was written as propaganda to get the Constitution ratified and first appeared as op-ed pieces in friendly newspapers. Expect it to be cited in the hearings and, like all tomes, to be used to back any point.

Federalist Society — Technically, it is the Federalist Society for Law and Public Policy Studies, though its name has been shortened by journalists. It is a group of conservatives and libertarians seeking to change the judicial standard to one closer to the original language and intent of the Founders. A major think tank in conservative circles, especially on the powers of Supreme Court justices.

first Latina — Sonia Sotomayor is the first Latina to be nominated to the Supreme Court. Obama argued that her life story, up from South Bronx poverty to the top court, was an inspiration to all and a confirmation of the American Dream. For the GOP, the political role of Latinos is crucial. In 2008 Democrats won 67% of the Latino vote, up from 53% just four years earlier. In an attempt to deflect the emphasis on Sotomayor being a “first,” some conservatives have attempted to rebrand Sotomayor. No less a personage than Karl Rove argued recently that “Sotomayor will become the second Hispanic (Benjamin Cardozo was Sephardic) and third woman confirmed to the Supreme Court."

identity politics — Both liberals and conservatives use this phrase to mean the same thing: a group that elevates common characteristics such as race, gender or ethnicity above other factors to make its political decisions. The difference is that liberals believe that this could be a good thing, while conservatives insist it is bad. Expect this issue to come up in discussion of the Obama administration picking a Latina for the post. It also might get raised on policy issues, such as the use of race in the workplace — an issue on which Sotomayor has ruled and should expect questions.

original intent — This refers to what the Founding Fathers thought and how they handled a specific issue. It should not be confused with original sin, a doctrine of Christianity, notably Roman Catholicism. If confirmed, Sotomayor would be the sixth current Supreme Court justice of Roman Catholic heritage or practice, further putting to rest what was once a major bias against practitioners of that religion.

Roe vs. Wade — The 1973 Supreme Court decision legalized abortion on grounds including recognition of a constitutional right to privacy for women choosing whether to carry a fetus to term. It has become one of the favored wedge issues for GOP conservatives who see the decision as anti-life and an example of an activist court moving beyond a strict construction of the Constitution, which never mentions the issue. Both sides will try to ascertain Sotomayor’s views.

umpire — When John G. Roberts Jr. appeared before the Senate Judiciary Committee in 2005 to argue for his confirmation as chief justice, he uttered these famous sentences on the role of the judiciary: Making_a_ruling

“The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” Since then, the formulation has become the basis of much conservative thought and is expected to be cited in Sotomayor’s hearings as well.

The image should come as no surprise to Sotomayor. As Obama noted, she is an avid Yankees fan and is known for her rulings during the players strike that forced a resumption of talks with owners and is said to have saved baseball.

— Michael Muskal

Top photo: Los Angeles Times

Bottom photo: Major league umpire Jeff Nelson. Credit: Associated Press

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