Here's something that leftish Democrats talked about a lot -- but only quietly, over drinks in back rooms -- when they were trying to decide whether to back Judy Chu or Gil Cedillo to replace Hilda Solis in Congress when President Obama picked Solis for labor secretary.

If we go with Gil, they said, we can hand-pick some reliable Democrat to replace him in the state Senate. But Gil's gone sort of moderate. So maybe we should go with more reliably leftish Judy. Oh, but wait, that will mean Schwarzenegger would appoint her replacement on the state Board of Equalization, and he'd choose someone who's gone sort of moderate.

Well, they went with Chu in the special primary, and she won. Today Arnold Schwarzenegger appointed moderate Democrat Jerome Horton to the Board of Equalization, and if he's confirmed, it's a major defeat for leftish Democrats. Even though Horton's a Democrat. Which raises some questions:

Q: What the heck is the state Board of Equalization?

A: It's the nation's only elected tax body. It's in charge of collecting sales and property taxes, and is not to be confused with the Franchise Tax Board, which collects income taxes. We need a separate, elected BOE because -- um, because -- well, because California needs more elected officials. Also, without a BOE, termed-out legislators who aren't yet ready to run for statewide office but who can't get appointed to the Waste Management Board would have no power base and limited fund-raising opportunities. The BOE keeps them in the game.

Q: Horton's a Democrat. And there's nothing wrong with being a moderate. So what's the big deal?

A: In tax policy circles, "moderate" is code for business-friendly, which changes the balance on the five-member board. The state is divided into four districts: 1st (representing the entire California coast, from Oregon to Santa Barbara; automatically a Democratic seat); 2nd (cow counties, tax revolt counties, the desert portion of L.A. county: Republican seat); 3rd (San Diego, Orange, Inland Empire; in other words, Republican seat); and 4th (the non-desert portions of L.A. County. Democrat). The tie is broken by the state controller, who is Democrat John Chiang. But Horton would be expected to mix things up by voting, sometimes, with the Republicans. And those tax policy votes will make a far bigger difference to California, in the short run at least, than anything Chu could possibly do in Congress.

Q: Wait, didn't Chu beat Horton in the last BOE Democratic primary?

A: Indeed she did: Chu got 49.7% of the vote in the 4-person field; Horton got 31.5%. So should we say that Schwarzenegger is flouting the choice of voters, who had a chance to pick Horton and overwhelmingly said no? Or should we say that Schwarzenegger is doing the voters' will by giving them their back-up choice?  

Q: Is Horton even qualified for this job?

A: No, unless you count his two-decade career at the BOE, his six years as a state assemblyman, and his four years on the Inglewood City Council. Some Democrats who oppose Horton likely do so because of his pro-business approach on taxes and his penchant for avoiding Assembly votes to keep lobbyists on both sides courting him until the last possible moment.

Q: What about Chu's husband, Mike Eng? Doesn't the state Constitution require Eng to always succeed Chu in any elected position?

A: No, although it's understandable why someone might think that. Eng succeeded Chu on the Monterey Park City Council, as Monterey Park mayor, and as member of the Assembly from the 49th District.

Q: Is Horton going to be confirmed by the Legislature?

A: Not without a lot of angst and political saber-rattling. If he's not confirmed, and no follow-up appointment is confirmed, a former Chu staffer will fill in until the BOE election next year. Bet you can hardly wait.

Q: If the BOE board is supposed to represent the entire state, how come four of five members come from the L.A. area?

A: District line-drawing at its finest.

Photo: Robert Durell / LAT

This week five esteemed legal minds have been commenting for Opinion L.A. on the Senate Judiciary Committee's confirmation hearings for Judge Sonia Sotomayor. Here are the submissions for Day Four of the hearings, in chronological order. To read the two previous installments in this series, go here and here.

Thursday, July 14

12:14 p.m.
Vikram D. Amar
Associate Dean for Academic Affairs and Professor of Law, UC Davis

Less than useless. If Judge Sotomayor didn't discuss any areas of law with President Obama and his folks (as she maintained), and won't meaningfully discuss any legal topics in front of the Senate (on the bogus ground that any such discussion would either be too abstract to be useful or too concrete to allow her to then be open-minded in the future), then what's the point of hearings?

It insults the intelligence of lawyers and non-lawyer alike for the Republicans to insist that federal judges ought not to make policy, and for the Democrats to insist that Judge Sotomayor hasn't made and won't make policy. What we all should be talking about are the ways in which legitimate judge-made policy differs from the kinds of policy decisions elected legislators and Presidents fashion. Federal judicial policymaking, when done right, is interstitial (accomplished with the boundaries of statutory and constitutional parameters); incremental (attendant to the size and speed of trends and currents in American law, history, economics and sociology); thoroughly transparent and explained in a published format that responds fully to arguments on the other side, and not particularly concerned with the next electoral cycle (even as it is properly aware of longer term American attitudes). Ironically, by misleadingly suggesting that judges do not and ought not to make policy, and saying that because of concerns about the immediate perceptions of voters in the next election, Judge Sotomayor and her supporters undermine, rather than support, the idea that judges can be and are different than other politicians. I had hoped for more from my own Democratic party.

Don't get me wrong. I fully support Judge Sotomayor's nomination and expect her to be an able justice. I simply think these hearings are, at best, a waste of time.

Vikram D. Amar is Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis

1:33 p.m.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law, Yeshiva University's Benjamin N. Cardozo School of Law

As I suggested in my first post, Republicans could do much worse than confirming Judge Sotomayor, and statements by various Republican Senators today confirm that fact. These hearings are a litmus test of what is happening (and what should happen) to the Republican Party. The interests that have secured power for Republicans in the past have been those involving the encouragement of capitalism, or business, and law and order. She has a solid record and impressive experience in both fields from a traditional Republican perspective, and the willingness of some Republican Senators to vote for her signals a new era in which Republicans are re-awakening to the basics.

Republicans lost their way when some among them tried to re-brand the party as one of narrow social interests that do not have the support of a majority of the American public (e.g., hard-line stances against abortion and gay marriage). Were they still capable of controlling the Party, the hearings would have been far more contentious and unpleasant.  Sotomayor simply is not a bitter pill for traditional, foundational Republican interests.

With the push by the Obama Administration for expensive health care reform in the context of a weak economy and many lost jobs, Republicans have a golden moment of opportunity to escape the maze in which they lost themselves and to get back to their strengths. The tenor of these hearings and the statements today indicate they may well get there.

Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

Photo: AP Photo / Charles Dharapak

Few things done in Washington have as much lasting importance as the choice of a new member of the Supreme Court. Yet the process is part Kabuki theater, part internal dialog -- in short, a ritual without spectacle. Senators ask predictable and well-practiced questions they usually know the answer to (unless the subject is an obscure TV episode), trying to elicit responses that will support the vote they've already decided to make. Nominees give predictable and well-practiced answers that reveal as little as possible about where they'll come down on the most contentious legal issues of our time. Everyone tries to sound reasonable, which means they rarely sound interesting.

But if you had to pick a star of Judge Sonia Sotomayor's hearings this week at the Senate Judiciary Committee, who would it be? Pick from our list below, or vote for "Other" and write in your choice in the comments field.

The Opinion Manufacturing Division invited a half dozen or so esteemed legal minds to comment on the Senate Judiciary Committee's hearings this week on the nomination of Judge Sonia Sotomayor for the Supreme Court. Here are the submissions for Day Two of the hearings, in chronological order. To read Day One's remarks, go here.

Tuesday, July 14

7:02 p.m.
Erwin Chemerinsky
Dean, UC Irvine School of Law

In response to hours of intense questioning, Judge Sonia Sotomayor said all of the right things to ensure that her confirmation will not have any unexpected problems. On Monday, Senator Lindsay Graham said that she would be confirmed unless she had a "meltdown." On Tuesday, there was no meltdown. Quite the contrary, she showed herself be to be extremely intelligent, exceptionally knowledgeable, and unfailingly poised.

She repeated the slogan that "judges apply, not make the law." Although I understand why this is said, I find it frustrating that nominees find it necessary to say something so clearly incorrect and that gives the public such a misleading picture of what the Supreme Court does. Every first-year law student knows that judges make law. In a common law system, like the United States, most of tort, contract, and property law is judge-made law. Everything the Supreme Court does makes law. To pick an example from a recent Supreme Court case, the Court would have made law whether it allowed or prohibited strip searching of a student suspected of having prescription strength ibuprofen. Whether the Court found a constitutional right to abortion in Roe v. Wade, or rejected such a right, it would have made law.

Saying that "judges apply, not make the law" is not only inaccurate, but harmful....

So far the Senate confirmation hearings for Judge Sonia Sotomayor have been as predictable as a Bob Herbert or Charles Krauthammer column. Democratic members of the Judiciary Committee have tossed her softballs. Republicans, slighting her voluminous work product as a judge, have harped about her now-infamous comment in a lecture that “I would hope 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.”

Equally predictable, and perhaps necessary, was Sotomayor’s artful recantation of her “wise Latina” gaffe (gaffe as defined by Michael Kinsley: telling the truth). Pressed by Sen. Jeff Sessions of Alabama (Latino population: 2.7 percent), the nominee acknowledged that her “wise Latina” comment was “a rhetorical flourish that fell flat.” It left the misimpression, she said, “that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge.”

Strictly speaking, she’s right on both counts. Her speech didn’t include the word “command.” And she did say in the lecture that she aspired as a judge to “transcend . . . personal sympathies and prejudices.” But the theme of the speech is hard to square with Sotomayor’s statement on Tuesday that judges “should examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.”

Whoa. If that's what her speech was saying, why bother dwelling on the importance of race or gender if the perspectives they yield are to be abandoned? Actually, in her speech Sotomayor referred to “excellent” studies showing that female judges “vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.” If they don’t, what’s the point of seeking gender diversity?

You don’t have to believe that judges are “robots” who vote only and always on the basis of their life experiences to accept that outcomes sometimes are affected by such factors. I’m going out on a limb here, but maybe, just maybe, Chief Justice John Roberts’ experience representing business clients allows him to appreciate (or overvalue) the employer’s perspective in a job discrimination case.

It’s likely both that experience affects how judges rule in some cases, and that those same judges believe they are transcending their experience and ruling simply on the law. Alas, that reality is too complex to be acknowledged in the partisan forum of a confirmation hearing.

Joshua Roberts / Bloomberg News

Monday, July 13

10:32 p.m.
Ilya Somin
Assistant Professor of Law, George Mason University School of Law

I of course agree that it is possible to find a few objectionable decisions from virtually any judge. However, these are four of the most important constitutional cases that Judge Sotomayor has handled in her career. They surely fall within President Obama's famous 5% of cases that truly reveal a judge's "deepest values."

Regarding Maloney, it is true that the Supreme Court ruled in the 19th century that the Privileges and Immunities Clause of the 14th Amendment does not incorporate the Second Amendment against the states. But the Supreme Court has never ruled that the Due Process Clause of the same amendment doesn't do so. Over the last 60 years, The Court has in fact ruled that  most of the Bill of Rights applies to the states through that Clause,  and in District of Columbia v. Heller, the Court specifically urged lower courts to consider the possibility that the Second Amendment is incorporated under that Clause.

On Ricci v. DeStefano, I think that Prof. Chemerinsky ignores my point that even the liberal dissenters in the Supreme Court criticized Judge Sotomayor's ruling that the case should not even have been sent to a jury. There was extensive evidence that racial politics, not a desire to avoid Title VII liability, was the real cause of city's decision. The District Court opinion that Judge Sotomayor and her colleagues endorsed in their Second Circuit opinion acknowledged as much, noting that evidence suggested that the city was motivated in part by a desire to promote "diversity" and by fear of adverse "political consequences."

Finally, I think Judge Sotomayor's decisions in Didden and Doninger were clearly not required by Supreme Court precedent. Indeed, in Didden she upheld precisely the sort of "pretextual" taking that even the Supreme Court majority in Kelo said was unconstitutional.

Ilya Somin, a constitutional law scholar, is an Assistant Professor at George Mason University School of Law and co-editor of the Supreme Court Economic Review.

9:59 p.m.
Erwin Chemerinsky
Dean, UC Irvine School of Law

The most revealing statement during the first day of the confirmation hearings was by Senator Lindsay Graham....

As I sat listening to Sen. Orrin Hatch's (predictable) opening remarks at Judge Sonia Sotomayor's confirmation, I hoped -- against hope? -- that Republicans eventually would move beyond whining about "Democrat" opposition to President Bush's nominees. If that happens, C-SPAN junkies will be bombarded by technical terms and case citations. Click here for a crib sheet, originally published on the first day of Chief Justice John G. Roberts Jr.'s confirmation hearings. Here's a sample:

• United States v. Lopez. In this 1995 decision the court by a 5-4 vote struck down the federal Gun Free School Zone Law, saying that Congress had exceeded its power under the Commerce Clause to regulate activities under the purview of the states.
• Color-blindness. The notion, frequently invoked by opponents of affirmative action, that the Constitution's guarantee of "equal protection of the laws" and the 1964 Civil Rights Act prohibit laws that confer any benefits on the basis of race, even if the beneficiaries are members of groups that were the victims of racial discrimination in the past.
• Comparable worth. A system in which a government agency sets pay scales based on whether jobs done primarily by women (e.g., nursing) are of "comparable worth" to those mostly done by men (e.g., truckdriver). As a lawyer in the Reagan administration, Roberts called the concept "pernicious" and "anti-capitalist."
• Hamdan v. Rumsfeld. A July 15, 2005, decision by the U.S. Court of Appeals for the District of Columbia in which Roberts joined the majority opinion upholding the legality of the military tribunals established by the Bush administration to try foreign suspected terrorists at Guantanamo Bay.

As a bonus, here's the Supreme Court decision overruling Sotomayor's ruling in the now-famous New Haven firefighters case. Who knows, somebody might bring it up.

Nicholas Kamm / AFP/Getty Images

The Opinion Manufacturing Division squeezes one more piece out of the Michael Jackson Farewell Tour: columnist Tim Rutten's rumination on celebrity. He contrasted Jackson's recent treatment with that of Sarah Palin (Jacko and "Caribou Barbie" in a single piece: double columnist gold!), arguing that the alleged sins of the former were washed away even as the latter was overwhelmed by the scrutiny. My own sense is that Jackson's death actually led to two competing lines of commentary about the man: he was a genius (the sentimental meme), and he was a pedophile (the "you can't libel the dead" meme), as famously enunciated by Rep. Peter King). That's not washing away sins, it more like carving them into his grave marker -- albeit underneath the "King of Pop" banner and the silhouette of Jackson hovering on his toes.

Elsewhere on the Op-Ed page, columnist Doyle McManus says don't hold your breath for another economic stimulus package. And economists Alan J. Auerbach and William G. Gale fret about the fiscal problems that are likely to be caused by the growing federal budget deficits:

The deficits projected over the next 10 years will accelerate our arrival at a debt-to-GDP ratio that for most countries would signal impending fiscal collapse. Indeed, Britain, with a debt-to-GDP ratio not appreciably worse than ours, was just warned by Standard & Poor's that its creditworthiness might be downgraded. The United States has traditionally enjoyed a favored status in this regard, as the supplier of the dollar, the world's reserve currency, and as a perceived haven in times of financial stress. But for how long?

In the editorial stack, the board expresses chagrin about the recent return to prominence of Mexico's Institutional Revolutionary Party, whose corrupt dominance of Mexican politics in the 20th century were so damaging to that country. (And by the way, how can you be both "institutional" and "revolutionary"? By advocating change so gradual, no one notices?) It urges the new General Motors, which may emerge from bankruptcy this week, to take lessons in openness and innovation from the computer industry. And it suggests a simple solution to the funding problem at the Maxine Waters Employment Preparation Center in Watts, which has run afoul of a new House Appropriations Committee dictum against grants for projects named after sitting members of Congress (in this case, Democratic Rep. Maxine Waters of Los Angeles): the center should drop Waters from its name.

A name change would involve some cost and inconvenience, but the investment would qualify the jobs center for funding now and in the future, while preserving a congressional rule that sets reasonable limits on pork. When Waters retires from public office, the program can honor her permanently.

Credit: Patrick O'Connor / Special to The Times

The Wall Street Journal today reveals yet another reasonwhy federal legislation is needed to beef up food safety in this country: the Nestle USA plant in Virginia had a history over the past five years of refusing to let Food and Drug Administration inspectors view their records on consumer complaints, pest control and other safety issues.

That would be the same plant that produced the Toll House cookie dough implicated in an outbreak of illness cause by E. coli. Food companies aren't obliged to show their records to inspectors. Some do, others don't.

The so-overdue bill to give the FDA the authority it should have had from the start -- as well as step up inspections and allow the FDA to issue recalls -- recently won the unanimous support of the House Energy and Commerce Committee, but Republicans (heeding the complaints of the food and agribusiness industries) have been weakening it all along the way.

Photo by Justin Sullivan/Getty Images

The climate-change bill has, under the hands of various Congress members, become a weak cousin of what it could have been, the editorial board complains. Sections have been reshaped to benefit the farm industry, while other important sections have simply been gutted. Still, it represents the first real effort by the United States to grapple with global warming, and should pass, as the board concludes:

The House should pass the Waxman-Markey bill, and the Senate should speedily follow suit. Even congressional Republicans can't generate as much hot air as the billions of metric tons of carbon dioxide it would eliminate.

The board also bemoans a court ruling that badly weakens the powers of the Los Angeles controller's office. Under Laura Chick, the office produced important watchdog reports on the operations of city government; now it is in danger of becoming weaker than it was even in the days before Chick. The board calls on the City Council to restore these powers legislatively but doubts, considering that council members also could find themselves the butt of the controller's investigations, that it will.

On the other side of the page, thoughts on Iran dominate the page. Renowned former Soviet dissident Natan Sharansky advises the West to listen more closely to the dissenters in oppressive regimes such as Iran. They might lack money, power and sophistication, Sharansky writes, but they know more about the evolution of the national mindset.

People in free societies watching massive military parades or vociferous displays of love for the leaders of totalitarian regimes often conclude, "Well, that's their mentality; there's nothing we can do about it." Thus they and their leaders miss what is readily grasped by local dissidents attuned to what is happening on the ground: the spectacle of a nation of double-thinkers slowly or rapidly approaching a condition of open dissent.

And John R. Bolton, former U.S. ambassador to the United Nations, criticizes President Obama for soft-pedaling his response to Iran. The president will never succeed in persuading Iran to forgo its nuclear initiative, Bolton argues, so there's no point in playing nice.

Photo by Giuseppe Cacace/ AFP/Getty Images