Conservative blogger William A. Jacobson of Legal Insurrection says Yes to Sotomayor. (Hat tip: InstaPundit.)
I haven’t watched the hearings — I’ve been, er, a little busy — but based on what I know, I’m inclined to agree: conservatives should vote “Yes.” Not because of ethnic politics, nor for reasons of short-term political preservation, but as a matter of principle, and to maintain the “moral high ground” on judicial nominations.
When 22 out of 45 Democrats opposed John Roberts, and 41 out of 45 opposed Samuel Alito, the Republicans could justifiably point out that Clinton appointees Ruth Bader Ginsburg and Stephen Breyer — known liberals every bit as much as Roberts and Alito were known conservatives — were confirmed 96-3 and 87-9, respectively. That means, obviously, that the vast majority Republicans voted to confirm them.
It isn’t that Republicans liked Ginsburg and Breyer. Certainly, a Republican president wouldn’t have appointed them. But the GOP votes for those nominees were really endorsements of the notion that elections have consequences, and the president generally has the right to appoint justices of his liking. The Senate’s “advice and consent” role, according to this view, doesn’t extend to ideology, unless perhaps the nominee is so wingnutty as to be completely outside the mainstream.
Now, of course, some liberals argue, in essence, that all conservative jurists are wingnutty and outside the mainstream, but this is an illogical tautology. Just because you disagree with their ideology, just because you think it’s backwards and reactionary and bad for the country and so forth, that doesn’t make the huge number of people who see things differently into fringe whack-jobs. By any objective standard, the opposition to Roberts and Alito was clearly based on ideology, and thus violated the principle — if any such principle exists — that otherwise qualified judicial nominees should not be rejected by the Senate on purely ideological grounds.
Likewise, Sotomayor is quite clearly qualified, in a neutral, formal sense. The objections to her nomination are firmly rooted in ideology. So, if conservatives mean what they have long said about the nomination process — and if they intend to trot out the “elections have consequences” argument when, say, President Romney appoints Justice Stevens’s replacement, and needs to get his conservative nominee through a still-Democratic Senate — they should follow Jacobson’s advice, and vote “Yes” on Sotomayor.
Will such a move make any difference politically? Will it help the Republicans win that hypothetical future confirmation battle? Is the “moral high ground” really worth anything? Perhaps not. But it sure would be nice to see somebody in Washington do something on the basis of principle.
And anyway, with so little to gain by opposing Sotomayor — she’s obviously going to be confirmed, and besides, she’s a liberal replacing a liberal — and with the Republicans still playing defense in the Senate (making my Romney scenario not at all far-fetched), I think it makes sense, even if one is thinking about strategy rather than principle, for the GOP to make the long-term play here, and keep the “elections have consequences” argument in their arsenal for future battles that will mean more.
CLARIFICATION: I’m not expressing an opinion on whether the Senate’s “advice and consent” role should or should not extend to ideology. I’m merely saying that conservatives and Republicans have, for the most part, long professed to believe this, and have been relatively consistent in promoting this view regardless of the political orientation of the particular appointment. Hence, to continue to espouse this position consistently is to maintain the “moral high ground.” Whether the position they’re consistently espousing is correct is a separate question.
Preface: Here’s a general, abstract argument that is not in anyway linked to the Sotomayor confirmation process – I’m not seeking to make any kind of partisan point here………..
I’m not sure that I agree with your ‘general principle’ that the Senate should impose a self-denying ordinance not to oppose obviously qualified judicial nominees with which it has a strong ideological disagreement. Yes, the primary responsibility for selecting Supreme Court justices lies with the President – and as you say, elections have consequences. But you could interpret the advice and consent clause as a means of ensuring that judicial appointments emerge from a somewhat broader spectrum of national opinion.
In political science, there’s the concept of the ‘minimum winning coalition.’ Essentially, this describes the minimum number of people – or minimum space on the ideological spectrum – that you must capture in order to achieve a certain goal. So, for example, to be elected President, you typically need to win at least 48% of the popular vote – or, in ideological terms, you need to secure the support of your base plus a reasonable share of the center-ground.
I think this concept could be quite helpful when looking at the judicial appointments process. The question is how big we want the ‘minimum winning coalition’ for qualified judicial nominees to be. Are we sure that the purpose of the advice and consent clause is simply to filter out unqualified nominees; or is it to ensure that judicial nominees must secure the support of a ‘minimal winning coalition’ that encompasses some degree of ideological heterogeneity?
I think this is a legitimate question – and I emphasize that I’m not asking it from a partisan point of view. If it is legitimate, then it casts some doubt on the idea that Senators who oppose judicial nominees on ideological grounds are necessarily not acting on “the moral high ground” (as it were).
I note in your post that you ask “whether any such principle exists” – so perhaps you are leaving open the possibility that there is a legitimate question here?
PS: Very helpful clarification – which more or less sweeps aside the point I was attempting to argue in my comment.
But I still think there’s an interesting question for debate here: Should ideology play any part in the Senate’s ‘advice and consent’ function?
Actually I have to hand it to Graham, I listened to him speak on this very subject at the beginning of the confirmation hearings, and he echoed what you said, essentially. He still wanted his chance to grill her, but he reminded his colleagues of just what you outlined.
Now sessions, on the hand. Jesus. I considered writing a guest column just to rail about what a jack ass Sessions is.
Thanks for your original comment, Alec – it inspired the clarification, as I’m sure you guessed.
I do agree that the ideology question is an interesting one, and honestly, I’m not sure where I’d come down on it. I’d want to hear a bunch of smart people on both sides voice their well-reasoned opinions first. 🙂
Seems like you could draw a distinction between ideology designed to promote your platform and ideology that’s little better than a stick in the other fellow’s eye.
An example of platform-type ideology might be something like if a known abortion rights supporter was nominated and pro-life was the strength of your candidacy. Stick-in-the-eye is when you elevate trivial things to ideology for the sake of, well, putting the stick in the other guy’s eye.
See when people think of ideology in re Sotomayor, they think of Wise Latina. Prototypical stick-in-the-eye example. Imagine if we were at the session where Sotomayor was speaking to young, nervous would-be Latina lawyers, with all their hopes and baggage, including a nagging perception that they were inferior to their white counterparts. If Sotomayor reassured them that the Wise Latina has the profile to outshine whitey, we’d probably nod to each other knowingly, like that was pretty cool how she encouraged her audience. It wouldn’t occur to us that she was racist that day.
Then again, if we were of that endangered species called Republican senators, and stinking Obama had boxed us in by nominating a reasonably competent and surely liberal hispanic judge, thereby whacking us in the head with the 2X4 of identity politics, we’d probably be highly motivated to turn Wise Latina into a tempest in a teapot. I mean what else are these Republican senators to do?
Weird thing is, I could see a successful movement to stop the platform-type ideology, on the grounds that everyone knows where you stand on abortion, senator, so maybe you could stop campaigning for just a few minutes. By contrast, I could see the stick-in-the-eye stuff like Wise Latina being very hard to eliminate – when you’re cornered, and there’s a stick…what else are you supposed to do?
” Imagine if we were at the session where Sotomayor was speaking to young, nervous would-be Latina lawyers, with all their hopes and baggage, including a nagging perception that they were inferior to their white counterparts. If Sotomayor reassured them that the Wise Latina has the profile to outshine whitey, we’d probably nod to each other knowingly, like that was pretty cool how she encouraged her audience. It wouldn’t occur to us that she was racist that day.”
Nice strawman! Both ears and the tail!
The problem is, this is a statement she has made at least 5 times, in print and orally, to professional organizations, journals and conferences that clearly expresses a belief in identity politics, judicial activism and latina superiority. This was quite clearly a statement of personal and judicial ideology, not a pep tak to nervous new lawyers.
That said, could you imagine ANY context in which a white male could make the complementary statement and still have a career?
That being said, put me firmly in the “elections have consequences” school.
But it is clearly coming to the point where Republicans are tired of deferring to Democratic nominations, only to have Republican nominees blocked and dragged through the mud. If there was any honor among Senate Democrats, Miguel Estrada would have already become the first hispanic justice.
I’m of the general opinion that over the course of the court’s history the moderates have made the best justices. I don’t mean that ideologically necessarily. I mean it more “ethically”. By ethically moderate I mean those justices that have been willing to completely ignore their ideology, whatever that might be, while serving on the bench. The only justice that meets that deffiniton at the moment is probably Kennedy. I might not always agree with him, but I’m generally fairly confidante that his decisions are not influenced by his personal ideology most of the time (I’m not going to hold Bush v. Gore against any of the justices, they all went full ideology before law on that one. When every justice flips their standard reading of the Constitution and precedent for one case ideology obviously won the day there.) That ethical moderation is what makes him a “swing vote”. The reality is all justice should be “swing votes”.
So, to Alec’s point, I should think that a Supreme Court justice, considering their term of service, should be supported by a broader political consensus than a President. But the question is not ideology per se, but rather willingness to look passed their ideology when making decisions. Which is why I think it is justifiable for the Senate to reject an ideologue. But not necessarily justifiable for them to reject someone they merely disagree with ideologically. That is obviously a rather fine line to draw, and perhaps you can’t know the difference at the time of confirmation. All I know is that the best judges we’ve had have been the ones that looked passed, or ignored their ideology in favor of doing what is right based on precedent and the Constitution etc. That is, made their decisions based on the facts, the law, and the rights of man. That is to say, fairness.
Does Sotomayor meet such requirements? I don’t know. I must admit I haven’t paid sufficient attention to the case. But I do look to the Senate to pay enough attention to the case.
To reiterate my central point. I think that both liberal and conservative ideologues make bad Supreme court justices and that to a certain extent it is the right and duty of the Senate to block such people form the court.
The House is the place for ideologues, the Senate the place for people of firm conviction. The Presidency is a place for pragmatists and the courts are for those of impeccable moral fiber and a sense of even handed fairness.
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