The Democrats' "jewbag" problem.

Have you noticed this controversy? It's the kind of thing that makes you want to say that if Republicans made a misstep like this we would never hear the end of it. It would be a "macaca" moment.

The staffer for DNC Chairwoman Debbie Wasserman Schultz who posted the controversial 'Jewbag' photo on her Facebook page in 2006 is no anonymous aide -- but the daughter of Mark and Nancy Gilbert, two major Florida donors who have raised more than $500,000 for the Obama campaign.

Danielle "Dani" Gilbert, according to party sources, was tapped by Wasserman Schultz to serve as a liaison to the Jewish community, even though party officials and people close to Obama told her that more senior Democrats were already handling those responsibilities.

Wasserman Schultz has thus far refused to fire or discipline Gilbert, whose gallery of candid photos and personal commentary has since been removed from her public Facebook page, according to Democrats.

(Also on POLITICO: Wasserman Schultz says Mormonism off limits)...

Thanks, Politico. Thanks for inserting Wasserman Schultz's banal pronouncement about that other religion. I guess there's some relevance. Let's read that:

Rep. Debbie Wasserman Schultz fired back Wednesday at Utah Sen. Orrin Hatch’s claim that Democrats would attack Mitt Romney’s Mormon faith in the fall election, saying the charge was “nonsense” and that the issue of religion was off-limits....

“That suggestion is utter nonsense. Let’s remember that President Obama has had so many things hurled at him – birth certificate questions, whether he is or is not a Christian,” Wasserman said. “For them to suggest that religion will be injected [into the election] by President Obama and the Democratic Party, I mean, I think they need to take a look inward at the accusations that their party and their supporters have hurled before they take that step.”

Well, I hope she's right about that, but of course, there will be many things the DNC won't control. It's hasn't been the RNC going after Obama over his religion, has it? And I seem to remember John McCain going out of his way to put Obama's religion far out of bounds, even declining to use the terribly juicy anti-American spoutings of Obama's pastor.

ADDED: What does "jewbag" mean? Urban Dictionary has definitions like "cheap; selfish person," "A greedy jew or a handful of greedy jews," and "someone who screws over another person on an extreme level." The "conservative web site" referred to in the Politico article is The Washington Free Beacon, which says:

The Democratic Party’s newly appointed Jewish outreach liaison is pictured on Facebook in a series of provocative photos with her friends holding dollar bills and referring to themselves as “Jewbags” and the “Jew cash money team.”

I'm inferring that the "-bag" part refers to moneybags, rather than — to point to other meanings of "bag" —  

1. an "unattractive or elderly woman," which, according to the Oxford English Dictionary, goes back to 1924 (P. Marks Plastic Age xviii. 202,   "I don't... chase around with filthy bags or flunk my courses"); or...   

2. "scrotum," which the OED locates back in the 1598 writing Frenche Chirurg: "The Scrotum, which we call the bagg wherin the testicles are contayned," which is the use of "-bag" in the present-day political slang term "teabagger," though I note that the 4th most-approved-of definition of "jewbag" at Urban Dictionary includes a second meaning "the action of tea-bagging a jew or someone of jewish descent."

"It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

Said Senator Orrin Hatch, commenting on President Obama's preemptive attack on a Supreme Court opinion that would strike down the health care law. Obama, referring to the Court as "an unelected group of people," said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.

Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

I had to laugh.

Because I've been living in that fantasy world for almost 30 years.

It's called the legal academy.

Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.

The Kagan hearings.

Here's the live stream. Yesterday was tedious beyond words, and, accordingly, I wrote nothing. Today, there's some potential for a spark or 2, and I'll do some live-blogging here.

8:03 CT: Senator Leahy invites Kagan to talk more about her parents. This is an incredibly soft softball question, and Kagan receives it the right way: as an opportunity to exhibit her warmth and humanity. Her face immediately radiates what looks like real love for her parents, and her words go straight to what is relevant: Her parents embodied and taught the values that will make her a fine judge. Kagan seems fully at ease and far more natural than the stuffy Senator. She gestures. She seems affable. Leahy is scripted and speaks in a gruff tone. His words are supportive but he sounds like he's scolding her.

8:09: Kagan is wearing a gray jacket. It's tailored with lapels like a man's jacket. Perfectly standard and stunningly dull and undistracting. I approve. Away with the goofy big-collared "political blue" thing she had on yesterday. She's speaking like a law professor, explaining how to do constitutional interpretation. Leahy is trying to drag her through his stodgy script, but she is seizing control. I sense the presence of a lawprof — being generous to a student who's asked a question and pulling the discussion to a more sophisticated level. The level of expression here is excellent.

8:45: Senator Sessions is taking an aggressive tone, interrupting Kagan in a way that doesn't make a very good impression. He quotes E.J. Dionne and [name needed] who have labeled Kagan a "legal progressive," and Kagan says she doesn't know what that term means and would like to decide for herself what labels apply to her. Instead of supplying a definition for "legal progressive," Sessions bluntly insists the meaning is known. Kagan keeps her cool and decisively wins this round. Someone give Sessions a clear definition of the term and a way to ask particular questions to determine if she fits within it.

8:51: The question of the way Kagan, as Harvard Law School dean, handled military recruiting has come up twice now. Leahy stopped Kagan from talking about the law school's specific policy and steered her into a much more general discussion of the great value of the military and respect for individuals who choose a material career. Sessions is now pushing Kagan on the legal position she took. Did she comply with the Solomon Amendment (which required schools to give equal access to military recruiters)? Kagan claims to have followed the amendment. Sessions smiles, but testily snaps: "You didn't do what the DOD requested!" Kagan is good at remaining poised and calmly re-explaining her position, which contains no whiff of antagonism to the military or even to the Solomon Amendment. She is displaying a judicious, careful approach: She needed to balance the school's anti-discrimination policy, the importance of providing full access for the students to military recruiters, and respect for the Solomon Amendment as interpreted by the Department of Defense. There is absolutely zero hostility to the military or to the law. She's not giving Sessions anything to turn against her. There's no righteous criticism of Don't Ask, Don't Tell or assertion of the law school's right to maintain its anti-discrimination policy despite the Solomon Amendment. His time running out, Sessions lets loose with his frustration: "I know," he says emphatically, that you opposed Don't Ask, Don't Tell.

9:09: Now, it's Wisconsin's own Herb Kohl. Rest time!

9:13: Kohl's laughable question: "I'm sure you're a woman of passion — Where are your passions?" He seems to be channeling Obama's empathy idea and wants her to identify some social or political issue that she's excited about pursuing through judging. Kagan, wisely, restates her devotion to deciding cases according to the law. This isn't a job where someone should come in with a particular substantive agenda and try to shape that job to meet that agenda, Kagan says (unsurprisingly).

9:36: Cameras in the Supreme Court would be great — for the Court and the people, she says.

9:40: Senator Hatch is now questioning Kagan about Citizens United. This is a good time to watch live.

9:53: As Hatch stresses the effect of the McCain-Feingold law on small corporations that would like to express an opinion at a time close to an election, and Kagan reminds him that her job as Solicitor General is to defend acts of Congress. When Hatch presses her on whether the law violates free speech rights, Kagan quips: "Senator Hatch, you should be talking to Senator Feingold."

10:57: I skipped Dianne Feinstein. Then, there was a break. Now, we're up to Senator Kyl. He's reading Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.

11:10: Kyl is trying to get at whether Kagan is biased against corporations and would find ways to favor the little guy, but there really isn't a way to drag out a confession like that. Kyl is using things Justice Thurgood Marshall said, citing her great praise of the man whom she clerked for, and asking her if she'd say that too. She's able to finesse this: Marshall was wonderful, but she's her own woman. And, of course, the overarching theme of every hearing on a Supreme Court nominee: She's going to decide cases according to the law.

11:22: "How do you decide who's 'on the side of the angels'?" Kyl asks, repeatedly pushing Kagan on a phrase she used in her notes when she was a law clerk. Kagan asserts (and I hear shakiness in her voice) that it meant who was on the right side of the law.

11:56:  Russ Feingold notes that the lack of Supreme Court Justices from the Midwest. How will Kagan, a New Yorker, understand the people of the Midwest? Answer: She's lived in Chicago and something along the lines of being very good about understanding whatever she needs to understand.

12:02: I'm taking a break from the live action. I'll catch up with transcripts and recordings later.

''I heard Sen. Hillary Rodham Clinton's name today and that would be an interesting person in the mix" of possible Supreme Court nominees.

Said Orrin Hatch.

With every Supreme Court vacancy, there's talk of appointing a politico instead of a judge. (Bill Clinton wanted to do it, but somehow just couldn't.) The notion always seems to be that a politician would be good at playing politics wrangling votes within the Court. But I have 2 questions:

1. Why would someone who could herd other politicians be good at manipulating Supreme Court Justices?

2. When did Hillary Clinton ever demonstrate that she could wrangle votes?

That said...

1. Barack Obama might enjoy removing Hillary Clinton from the political sphere.

2. It would be harrowing to run the Secretary of State through the judicial confirmation wringer.

UPDATE: Apparently not.

Live-blogging Day 2 of the Sotomayor confirmation hearings.

8:16 CT: Just setting up a post. The hearings begin at 9 CT. Stop back.

9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.

9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where policy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.

9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deny the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to reframe her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.

9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.

9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.

9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.

10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.

10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.

10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.

11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.

11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.

11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.

11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?

11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.

1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.

1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.

2:11: Sotomayor disentangles herself from Obama's line about "heart":

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

Sotomayor sticks to her strategy of declaring fidelity to the law. None of this "heart" business for her.

2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?

3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.

3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an originalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.

3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.

3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.

3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.

6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?

Live-blogging the Sotomayor confirmation hearings.

8:22 Central Time: I'm setting up the post. The hearings start at the top of the hour. You can watch on-line at C-SPAN. I'll be watching, with a DVR assist to get quotes right, and I'll also be doing some radio commentary, at the breaks, on Minnesota Public Radio.

8:48: After reading some of the comments here, I want to say that, of course, I think that Sotomayor will be confirmed. So that won't be the focus of my commentary. There are plenty of genuinely relevant, important things to observe. You'll see!

9:02: The Senators all get to make — which means read — 10 minute statements. Patrick Leahy, is now reading Sotomayor's biography to us. Leahy has a raspy, annoying voice, and he stumbles over words, saying, for example, "pie partisan."

9:11: Leahy acts like it's a special problem that Sotomayor was attacked before Obama picked her. But that's the very best time to make the argument about possible nominees. It might influence the selection. Once the selection is made, it is extremely difficult to defeat it.

9:14: Senator Sessions stresses impartiality and adherence to the law. "Our legal system is based on a firm belief in an ordered universe, an objective truth... Down the other path lies a Brave New World where words have no true meaning.... In this world, a judge is free to push his or her political or social agenda." "An ordered universe" comes close to grounding law in religion, but doesn't quite go there. Atheists can believe in "objective truth" too. Sessions is making a nice and clear statement of what really should be the GOP theme in these hearings. Law is not ideology or politics, and relativism undermines the rule of law.

9:36: Orrin Hatch reminds us of what Obama, as a Senator, said against Janice Rogers Brown. Turnabout is fair play. [Here's the text of Senator Obama's anti-Brown speech.]

9:49: Dianne Feinstein does not think judges are merely umpires (as John Roberts notably asserted at his confirmation hearings). Personal background informs decisionmaking — properly and inevitably.

10:00: Russ Feingold wants us to be wary of the term "judicial activism." It really is used to say, essentially, a decision I don't like.

10:22: Chuck Schumer is carrying a lot of weight, making the argument that the Republicans obviously are planning to demand that Sotomayor make for herself. He's laying out details that show Sotomayor has been impartial, that the outcomes in her cases do not reveal favoritism to certain times of litigants and antipathy toward others. She really has been an umpire, unlike Chief Justice Roberts who said he was an umpire, but check out the outcomes in his cases.

10:26: Lindsey Graham says that no Republican President would have picked her. Miguel Estrada would be the choice if the idea were to pick the first Hispanic Supreme Court Justice. But this isn't about ethnicity. It's about liberal and conservative, he says. He tells her outright, she'll be confirmed. That is, "unless you have a complete meltdown" — which she won't.

12:11: They're on lunch break now. I did 10 minutes of analysis of Minnesota Public Radio. And there were a few more Senators doing their opening speeches that I haven't said anything about. It's getting a little repetitive. Kind of a drag to have to go after so many others, but nothing is forcing the Senators to have this terribly clunky approach to opening the hearings. On the up side, it will be interesting to hear a little speech from Senator Al Franken. My guess is that — in an effort to establish his senatorial gravitas — he will be terribly boring.

1:20: Specter said a lot of pretty substantive things, but, sorry, I was bored. And now: It's Al Franken!!!! Ha ha ha! I'm laughing, because he's a comedian, but he's not saying anything funny.

1:31: A heckler! Hey, Franken is a comedian! He should have some snappy comebacks!

1:33: "Judge Soh-toh-my-AIR."

1:34: Franken keeps talking about himself. I just took the oath of office... I may not be a lawyer... blah blah blah.

1:35: Man, Franken has quickly adapted to the Senate. He's doing pompous and leaden as if he'd been lumbering along senatorially for decades.

1:41: Chuck Schumer is now sitting at the table next to Sotomayor. He's being the Senator from New York, introducing the nominee from New York.

2:06: Sotomayor stood to take the oath, saying "I. do." in a way that tracked the odd cadence used by Senator Leahy. in administering it. She then gave a plain and straightforward statement about her simple judicial philosophy: following the law as written. She presented empathy and her personal background something that might enhance her understanding of the facts. In the end, the only task is to say what the law is and apply the law to the facts. There's nothing for the conservatives to attack in that (unless they say they don't believe her, which isn't nice). She said what they say they wanted to hear. And this — not any complicated explanations about how empathy is a component of interpretation — is really the easiest and best way to appeal to Americans. Good job.

An openly gay Justice to replace Souter?

Dahlia Lithwick talks about all those females who are or seem to be lesbians.

This struck me:

Sonia Sotomayor, the Bronx judge at the top of most shortlists, was briefly married in college and never had children. In his woefully under-reported "The Case Against Sotomayor," the New Republic's Jeffrey Rosen quotes an anonymous source alleging that she is a "bully" and "not all that smart." Also included in this damning portrait: "Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family—working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier [sic] of a Harry Potter movie."

Do you think Justice Scalia, with his devoted wife and abundant extended family, takes his clerks to see Harry Potter? Or even La Traviata? A woman who surrounds herself with young, paid employees late into the night has a faint air of scandal and desperation about her or, at the very least, of being something short of a fully realized woman.

Wow. It never occurred to me to think that way. I just thought it was really nice that she socialized with the clerks. But okay. Maybe it does look desperate.

(This all reminds me of the way, back when Souter was nominated, Senator Orrin Hatch said he would have been more comfortable with a family man.)