July 15, 2009

Every so often, an action hit comes out of nowhere”€”Mad Max, Terminator, Ricci v. DeStefano. Inevitably, we start hoping that the big budget follow-up can keep the same excitement going, just with huger explosions. A few times”€”Road Warrior, Terminator II“€”our dreams come true.

I”€™ve got to say, though, that this Ricci sequel, The Senate Sotomayor Hearing, has so far been the dullest successor since Matrix Reloaded.

Can”€™t anybody afford a decent script doctor?

You might almost imagine that Sotomayor was crafted to drive away its audience. It’s as if the people in Washington don”€™t really want American citizens paying attention.

For example, who came up with the idea that the main character would win the big prize if she was as cyborg-like as Arnold Schwarzenegger in Terminator? (At least Arnold hit the gym first…)

And who greenlighted this ordering of the witnesses, with the big cheese first? Hadn”€™t they ever heard of concepts like “€œbuild-up,”€ “€œdramatic suspense,”€ and “€œclimax?”€

Sotomayor reminds me of when I went to the US Festival in 1983, and David Bowie finally came onstage at midnight after eight hours of opening acts. Granted, he was kind of lame, but it still seemed exciting because 200,000 people had been waiting for him forever.

But, under the Sotomayor system, Bowie would have strolled onstage at 11:30 A.M., while the sound system was still being plugged in and the fans were unfolding their beach chairs. And then Bowie would have been followed by Joe Walsh, Missing Persons, Berlin, and, in the big finale, Quarterflash!

As for Sotomayor‘s dialogue … Who decided that much of the chit-chat would be about judicial philosophy? It’s like a later Wachowski Brothers”€™ screenplay.

For example, after Senator Jeff Sessions points out Judge Sotomayor used her “€œwise Latina”€ catchphrase not once, as her defenders claim, but at least a half-dozen times, did he go in for the kill over her blatant ethnic bias in favor of racial preferences?

Nah, he then waxed philosophical:

Let me recall that yesterday you said it’s simple fidelity to the law. The task of a judge is not to make law; it’s to apply law. I heartily agree with that. However, you previously have said the court of appeals is where policy is made. And you said on another occasion “€œthe law that lawyers practice and judges declare is not a definitive”€”capital L”€”Law that many would like to think exists,” close quote.

So I guess I’m asking today what do you really believe on those subjects. That there is no real law and that judges do not make law? Or that there is no real law and the court of appeals is where policy is made?

Jeff, I love you. You may have singlehandedly saved America from an immigration amnesty in 2006. You also have a good point here. But, please, can you dial back on the Abstraction Meter a notch? My brain hurts.

C”€™mon, people, a summer blockbuster needs conflict. It needs human interest.

If Judge Sotomayor is too delicate for chivalrous Senators to trade punches with her, then subpoena a bad guy you can knock around, such as the loser in Ricci, Mayor John DeStefano of New Haven.

The funny thing is that although senators have treated recent Supreme Court nominees like they are made out of Dresden china, real Justices cut to the chase.

Compare Monday and Tuesday’s Senate blather to the Supreme Court Justices”€™ killer lines at the Ricci oral arguments (pdf) back in April. Chief Justice Roberts barely let President Obama’s Deputy Solicitor General Ed Kneedler emit one sentence of his spiel before he, in effect, thunked him on the head with his gavel:

Kneedler: Mr. Chief Justice, and may it please the Court: This Court has long recognized that Title VII prohibits not only intentional discrimination but acts that are discriminatory in their operation.

Roberts: With respect to both blacks and whites, correct?


Put yourself in the shoes of the White House’s hired gun after he got rocked with that straight right. If he replied, frankly, “€œNo,”€ he”€™d get schooled on how the civil rights laws say they”€™re intended to protect all equally. The poor man had to answer:

Kneedler: Yes.

Roberts: So, can you assure me that the government’s position would be the same if … black … firefighters scored highest on this test, … and the City said, “€œWe don’t like that result, we think there should be more whites on the fire department, and so we’re going to throw the test out?”€ The government of United States would adopt the same position?

The ref could have stopped the fight right there. I”€™d guess there was a majority for Frank Ricci the moment the Chief Justice of the Supreme Court bodyslammed the credibility of the President of the United States.

Obama’s mouthpiece gamely staggered on, trying to throw a left hook:

Kneedler: … The employer’s action has to be tied to a concern about a violation of the disparate impact of”€”

Roberts: … That’s the part I don’t understand. What you’re saying is that “€œThe [Fire] Department can engage in intentional discrimination to avoid concern that they will be sued under disparate impact.”€ Why doesn’t it work the other way around as well? Why don’t they say, “€œWell, we’ve got to tolerate the disparate impact because otherwise, if we took steps to avoid it, we would be sued for intentional discrimination?”€

The Administration’s man laboriously tried to climb back on his feet, only to have Antonin Scalia hit him from the blindside with a folding chair:

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Kneedler: Well, to”€”to say that an employer violates the disparate treatment provision of Title VII … when it acts for the purpose of complying with the disparate impact provisions of Title VII would be to set those two mutually reinforcing provisions of Title VII at war with one another, contrary to”€”

Scalia: They are at war with one another.

Now, that’s entertainment.


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