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Sotomayor’s Supreme Court Bid, GM’s Future Top Week’s News

May 29, 2009 at 12:00 AM EDT
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Columnists Mark Shields and David Brooks analyze the news of the week, including President Obama's nomination of Sonia Sotomayor to the Supreme Court and GM's likely bankruptcy.
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TRANSCRIPT

JUDY WOODRUFF: And to the analysis of Shields and Brooks — syndicated columnist Mark Shields and New York Times columnist David Brooks.

So, gentlemen, we have heard the professors discussing.

David, is this — with — when you look at Judge Sotomayor, are we talking about somebody who is careful and rooted in the facts, or somebody who is going to predictably lean to the left?

DAVID BROOKS: You could be both.

DAVID BROOKS: And I think that’s quite possible.

I think one of the things we have — first of all, it is overwhelmingly likely she will be confirmed, from what we know so far. Just the temperature even of the Republican senators, they are not on the warpath. They are sort of cautious and waiting.

I think the crucial issue — there are a whole list of concerns people have raised, temperament and other things. I think the — the most important one involves this identity politics. She gave that speech about being a wise Latina woman.

And if you are going to give speeches like that, it has to be extremely clear on the record that you will sometimes rule against the groups you are celebrating outside the courtroom.

In the Ricci case, the New Haven firefighters case, seems to give impulse to those who say, no, she is favoring certain groups. And this is sort of a heartrending case and a politically explosive case. You have got this dyslexic guy. He quits a second job. He studies eight hours a day. He passes the firefighters test, and then the results are expunged.

So, that is the one explosive thing hanging out there. But if, as all the legal experts seem to tell us, she is very fact-based, very modest, then in fact her outside speeches will not be reflected in those — in the actual judgments. In that case, politically, she will be fine.

JUDY WOODRUFF: That was a one-paragraph decision, as — as we just heard.

Mark, how do you see her? Where does — where does she fit?

MARK SHIELDS: Well, I had — I had a — I had a good Republican friend say to me, now, let me get this straight. We have a woman whose mother came to this country, joined the Army, was widowed, and worked seven days a week to live in public housing to send her daughter to parochial school, where she was valedictorian of her class. And she then went on to Princeton. And they say, well, that was affirmative action.

Well, she was summa cum laude at Princeton. I mean, as Alan Simpson used to say about white males, you know, they graduated, not summa cum laude, but thank the laude.

MARK SHIELDS: I mean, it — I mean, it was just an amazing achievement.

She then goes to Yale Law School, and is she on the law review. I mean, this is not an affirmative action case, in the way that they are commonly understood by many on the right. My old colleague and friend Pat Buchanan called her an affirmative action — it is not that.

I mean, obviously, she meets the ethnic requirement. This is the fastest-growing electorate in the country. Three times, it’s increased in size over the past 20 years, Latinos. They have never had anybody. The four key states in the 2008 election were Colorado, New Mexico, Arizona, and — and Nevada, all big states.

I mean, the thing, politically, is — and my Republican friend said to me, he said: This is a disaster for us, if we try and stop this — this nominee, politically.

And I — I think there is great truth to that. I think David is right, that the one case they have is the — is the New Haven firefighters case. And it’s freighted with emotion. But, as you point out, it was a one–paragraph decision. There’s four judges who heard the case, the district court and the three on the court of appeals with her, and they all agreed.

Debate over Sotomayor's ideology

David Brooks
New York Times
From the White House the word that you hear is modest, modest, modest. She is a minimalist. She is cautious. Don't be scared. She is very careful.

JUDY WOODRUFF: You say not affirmative action.

But, David, we just heard the professor, professor Cassell, say she is not somebody with great intellectual firepower.

DAVID BROOKS: Yes. Well, I -- I don't think it's affirmative action. And Mark talked about her record. I think it's pretty clear she is certainly smart enough to be on the court, certainly has the record to be on the court. She has got more experience as a judge than most nominees, I think all but one, actually having trial experience.

And so I don't think that's an issue.

What is talked about -- and on both sides -- they just have different views of it -- is the nature of her decisions. And when you talk to lawyers and legal experts who -- who have read a lot of these decisions, they do tend to agree that they are very context-based, very fact-based.

They are not broad, abstract, theoretical decisions. Now, from the White House the word that you hear is modest, modest, modest. She is a minimalist. She is cautious. Don't be scared. She is very careful.

And that actually is very consistent with what you hear on the other side from some of her opponents, which we just heard from professor Cassell, which is, she is fine, but she's not a great theoretician. She is not an anti-Scalia.

And I have heard from the Republican groups or conservative groups, that is fine. If we are going to have an Obama nominee, we wanted someone who is modest and careful, not somebody who is more theoretically aggressive.

Debate over identity politics

Mark Shields
syndicated columnist
It would be so refreshing for any public figure to say, I was wrong. I take that back, and, you know, I am a fallible human being.

JUDY WOODRUFF: So, Mark, today, the White House, as we heard, they are -- they are saying now that Judge Sotomayor acknowledges that she chose her words poorly when she said back in 2001 that a wise Latina woman, she hoped, would make a better decision than a white man.

Does that mean that the conservatives have drawn blood here? What -- what -- what does that say?

MARK SHIELDS: Judy, I mean, it was -- it was wrong. I mean, let's be very blunt here.

JUDY WOODRUFF: You mean what she said.

MARK SHIELDS: What she said was wrong.

I mean, that is not the standard that Americans live by, that somebody because -- solely because of ethnic identity or gender, is going to be a wiser jurist. Now, say, be a -- I would bring different sensibilities, sensitivities to the bench, that is one thing.

We go through stages on this. The White House says, she would have chosen her words differently. It used to be, "if I offended anybody" was the first stage. And then secondly was, "I misspoke."

Just -- just -- it would be so refreshing for any public figure to say, I was wrong. I take that back, and, you know, I am a fallible human being.

DAVID BROOKS: There is a serious issue here, which is something we're -- I think we're going to get at in the next couple of weeks, which is, she profoundly believes her own views and even the views she takes to the bench are profoundly connected to her upbringing, including, you know, her -- her gender, including her ethnic background.

And she gave another speech in Berkeley, I think in 2001, where she explicitly said -- she was rebutting another judge who said, we should rise above our ethnic background and we should try to transcend it, and she said, no, that's not possible.

And so -- but that -- that is a debate which I think we're going to have, which is -- which is not the same thing as saying you are better.

DAVID BROOKS: But it is, to what extent is a judge or any of us a product of -- a product of our upbringing? To what extent can we or should we try to transcend it?

MARK SHIELDS: Sam Alito -- I watched the tape today -- in his hearings...

MARK SHIELDS: ... Judge Alito said: When I see an immigrant before me in a case, as a -- as a plaintiff or defendant, I see my grandfather, because we were immigrants. When I see a discrimination case, my family was discriminated against.

Obviously, you bring experiences. Sandra Day O'Connor said, the experiences of -- of Thurgood Marshall sensitized her on -- on race. I don't think that any -- I mean, what we are seeing now is -- is both sides, -- the Democrats want quick hearings. The Republicans want to stretch it out until September.

That is a total role reversal. And the -- the wisdom of one of the great senators of all times, Henry Fountain Ashurst of -- of Arizona, comes to mind, when I watch these two sides just reverse their positions.

And he said, the clammy hand of consistency never rested for long on my shoulder.

DAVID BROOKS: Barack Obama voted against John Roberts and Sam -- and -- and Alito for purely ideological grounds. Now he is asking all the Republicans not do the same for -- for Sotomayor.

Expectations for the hearings

David Brooks
New York Times
Even some of the conservative groups who are sort of paid to oppose these things are not that hyped up about it.

JUDY WOODRUFF: So, what? Is it too early to know, David, what the main lines of attack are going to be...

DAVID BROOKS: Well, identity politics would be the -- I -- I think, so, from what we know so far, the main and possibly only real line of attack.

And I think the second thing we can say, based on the climate right now, is those lines of attack will be strong from Rush Limbaugh and Newt Gingrich, but will not be particularly strong from elected Republicans.

MARK SHIELDS: And that is a real tragedy for the Republicans, I mean, the unholy trinity of Rush Limbaugh and Newt Gingrich and Ann Coulter being the voice.

JUDY WOODRUFF: What's a tragedy? Oh.

MARK SHIELDS: I mean, being the voice.

I mean, John Cornyn, who is the -- who probably is as serious on judiciary matters as any conservative Republican in the Senate -- and he's chairman of the Republican Senate Campaign Committee -- said, neither one of these, speaking of Gingrich and Limbaugh, is an elected Republican.

And, you know, so, they are taking up these positions. Gingrich asked to resign, just as he asked Nancy Pelosi. I guess he wants women in public office to resign. I mean, but what -- what is this all about? It's not helpful to Republicans.

JUDY WOODRUFF: Well, but again, David, your sense right now, she's going to get through, right?

DAVID BROOKS: Yes. Clearly, there is -- even some of the conservative groups who are sort of paid to oppose these things are not that hyped up about it.

MARK SHIELDS: Eight -- eight senators who voted as Republicans, including now Arlen Specter, in the Senate for her confirmation are there, I mean, as well.

Jesse Helms, the conservative icon, the late Jesse Helms from North Carolina, voted to confirm her as -- to the court of appeals, after she had been on the district court. So, I mean, it's kind of tough to make a case that this is a bomb-thrower.

General Motors bankruptcy

Mark Shields
syndicated columnist
When it comes to the bondholders and workers, I come down with Abraham Lincoln, who said labor is independent of and prior to capital and deserves much the higher consideration.

JUDY WOODRUFF: All right, General Motors, I have to ask you both about this. They are just a couple days away, I guess, from declaring Chapter 11 bankruptcy.

Icon of American industry about to go under. The federal government is going to own, David, something like 70-some percent of this company.

DAVID BROOKS: Yes, we're all investing another $50 billion.

JUDY WOODRUFF: What do you make of all this?

DAVID BROOKS: I'm calling the White House next time I have a brake problem.

DAVID BROOKS: I'm very concerned about it, for this reason. I think there are -- there -- well, for a number of reasons, but the main one is that they have got two objectives, one, to get the auto companies back on their feet. The second objective is to get them to make smaller, more fuel-efficient, more environmentally-sensitive cars.

My feeling is, GM doesn't do that particularly well. It's not clear that consumers want GM to produce those kind of cars. And these two things may come into conflict. On top of that, there are tons of conflicts of interest between government closing dealerships, closing plants, dealing with unions.

And, so, my fear is they will go into...

JUDY WOODRUFF: What do you mean conflict of -- of...

DAVID BROOKS: Well, you have got politically -- you have got politically connected organizations, like the car dealers, like unions, and then the government, elected officials, are essentially making decisions about how -- whether to control their jobs.

So, my fear is that we will go into the government owning GM, GM will not for a long time be able to stand on its feet, and we will never get out.

MARK SHIELDS: I don't know how politically connected any of the institutions are, Judy.

The -- the Congress just washed its hands of this entire matter and turned it over to the executive. And, so, the executive is -- namely, the presidency, in the form of Steve Rattner, his...

JUDY WOODRUFF: Car czar.

MARK SHIELDS: Can't call him car czar.

JUDY WOODRUFF: You're right. It's different.

MARK SHIELDS: They said he's not a czar. We have a lot of czars, but he is not one of them. But he is the car honcho.

MARK SHIELDS: And they're -- they are trying to save it.

I mean, David mentioned the car dealers. When you think of auto dealerships closing all over this country, what they mean in towns everywhere, I mean, the -- the little league sponsor, the -- the yearbook advertising, the coffee shops they sustain, I mean, you know, I am willing to take a chance to try and save it and hope it does.

The -- the UAW, with all its political clout, gave back a billion dollars in concessions today.

JUDY WOODRUFF: And -- and, David, do I understand you to say you think it would have been better just to let it go?

DAVID BROOKS: Well, I think it would be better to have a not -- the least political process possible. And I -- I think a least political process would have involved a lot less federal intrusion.

JUDY WOODRUFF: Meaning?

DAVID BROOKS: A bankruptcy process...

JUDY WOODRUFF: A liquidation?

DAVID BROOKS: Not a liquidation, but a bankruptcy process that allowed it to get through, without the government deciding how much to give to the bondholders, how much to give to the UAW, without the government really being on the hook for which plants close and which don't close.

JUDY WOODRUFF: Was that possible?

MARK SHIELDS: I don't think it really was.

But I -- when it comes to the bondholders and workers, I come down with Abraham Lincoln, who said labor is independent of and prior to capital and deserves much the higher consideration.

And that's...

DAVID BROOKS: Well, it should be said that I supported the bailout months ago, when we were really in this big crisis, and there really was this crisis of liquidity.

Now it is a little different situation. I think the government has sort of doubled the ante, at a time when they should be scaling back.

JUDY WOODRUFF: Well, we definitely don't want to scale back on either one of you.

JUDY WOODRUFF: We thank you for being here.

David and Mark, thank you, both.

MARK SHIELDS: Thank you, Judy.