How did the Republican Party’s approach to dealing with
objectionable Supreme Court nominees come to resemble the Democrats’
strategy for the war on terror: scorn anyone who says anything critical
of the opposition and settle for second-class citizen status,
dhimmitude-style? Are Republicans trying to balance Obama’s cooption
of Bush’s war policy to restore some kind of harmony in the universe?
Over the past week, we’ve been treated by Republicans to a range of
subtle and nuanced political stratagems for dealing with the nomination
of Sonia Sotomayor, including: shut your mouth, don’t speak, zip your
lip, don’t make waves, and while you’re at it, don’t say anything.
This, from the party of “hawks” who bravely fought and won the Civil
War, the Cold War, and the Battle of Chad.
Let’s examine the reasons offered by Republican turncoats why we should not tender a whisper against the Sotomayor nomination:
It’s mean-spirited. Well, Democrats successfully mobilized
before Reagan’s fourth Supreme Court nomination, Robert Bork, savagely
vowing to form a “phalanx of opposition” against anyone at all Reagan
deigned to choose. Democrats tried to destroy George W. Bush
appointees John Roberts and Samuel Alito but failed only because they
lacked the votes (at least they managed to invade Roberts’ family’s
privacy and make Samuel Alito’s wife cry!). The Republicans have not
opposed a Supreme Court nominee by a Democratic president since 1968.
I think that at least qualifies as “sporting.”
It’s immature. In the Wall Street Journal, Peggy Noonan
scolds Republicans for not “play[ing] grown-up” and calls those who
want to fight against Sotomayor’s nomination “idiots” who refuse to
“think” or “dress the part.” Let’s see: Five members of the Supreme
Court have the power to make sweeping, life-or-death decisions that
affect hundreds of millions of Americans and countless future
generations. I think raising forceful objections to Sotomayor’s
judicial philosophy and temperament comes down more on the adult side
than “She has cooties!”
The Republicans will lose independent voters. Republicans
have most often converted independent voters and won elections when
they have stuck to the party’s principles rather than offering a
watered-down version of the Democratic party line, as in November
2008. So remind me: How will consistently standing up and making a
compelling case for their views cause Republicans to lose voters who
are looking for a party that can offer consistent, compelling views?
The Republicans will lose political capital. Obama’s
political goodwill toward Republicans began and ended with inviting
John McCain to the White House for bean dip on Super Bowl night.
Congressional Democrats’ political goodwill toward Republicans has yet
to materialize, and never will until Republicans regain both houses and
Democrats are on the defensive again.
Sotomayor is not that liberal. Just as Obama is the most
leftist president we’ve ever had, Sotomayor would be the most leftist
justice on the current Court, even more of a liberal activist than
Ginsburg, Breyer, and Stevens, who seem like Daughters of the American
Revolution in comparison.
Sotomayor won’t change the balance of power on the Court.
Both Souter and Sotomayor are liberal on social issues, but they are
not both liberal on economic issues. Souter is no Steve Forbes, but
Sotomayor’s ruling in the shocking Port Chester “eminent domain”
private property grab places her ideologically to the left of Marx.
Republicans will lose the Hispanic vote. Putting aside the
condescending “voting bloc” mentality this ascribes to Latinos, it
should be noted that Democrats weren’t worried about losing Hispanic
votes when they opposed Bush’s nomination of Miguel Estrada to the D.C.
Court of Appeals in 2002—indeed, they had enough stomach for the fight
to wage seven filibusters against bringing him to a vote. If
Republicans are concerned about losing Hispanic votes, I suggest they
offer the thoroughly vetted Estrada as their preferred nominee.
Sotomayor has an impressive resume. Newsflash: So do a lot
of people! I would wager that the number of potential nominees who
went to top-tier undergraduate and law schools and managed to get a few
employers and coworkers to say nice things about them numbers—oh, at
least two or three. Also, Sotomayor’s supporters defend against the
charge that a majority of her appeals court decisions were overruled by
the Supreme Court by stating that such cases are difficult—yet we are
now expected to support her addition to the same team of justices who
are capable of correcting the types of rulings she screwed up.
Finally, as Andrew McCarthy points out, Sotomayor’s ravings about the
superior decision-making ability of certain races and genders doesn’t
even quality her to be on a jury, let alone the Supreme Court.
Her confirmation is inevitable. The Supreme Court will be
ruling on the Ricci v. Destefano firefighter discrimination case in
June, weeks before Sotomayor’s confirmation hearings. It is expected
that the Court will overturn the decision Sotomayor supported, thus
further energizing opponents of legalized racism (i.e., “Americans”).
Republicans should also remind the nation that Obama hasn’t
demonstrated the most thorough vetting acumen in his first few months
in office, having nominated a “phalanx” (if you will) of tax cheats and
ethically challenged miscreants to Cabinet and other posts.
How about this strategy for dealing with the current nominee? I say
that even if Sotomayor’s resume is as long as the phonebook; even if
someone makes a persuasive case that she’s not the most liberal justice
in the world; even if Republicans are accused of being mean-spirited
and immature; even if we lose a few wishy-washy independents, have a
few Hispanics look at us askance, and ruffle a few Democratic feathers;
and even if it’s not 100% certain that her confirmation can be stopped;
the Republican party should fight this nominee kicking and screaming,
hammering home the message about her record until her supporters get
tired of brushing it under the rug, until we’ve made our point to the
And they say the Republican Party doesn’t have any fighting spirit left.