Bench Memos

NRO’s home for judicial news and analysis.

With Bill Bennett Tomorrow A.M.


That’s where I’ll be, discussing the Sotomayor nomination–and maybe the California marriage ruling too–during the 7:00 hour (Eastern time).  Tune in here if you don’t have a local radio station that carries Bill.

By that time tomorrow morning, I think I’ll have an article up on the NRO homepage reviewing the history and principles of Supreme Court confirmations (and rejections).  In addition to what I say in that article, here are my thoughts on the nomination of Sonia Sotomayor:

–As the Anchoress points out, there was no sign that Democrats were cowed into not opposing Miguel Estrada just because he’s Hispanic, nor into not opposing Clarence Thomas just because he’s black and has a “compelling” personal story.  There’s no reason for Republicans not to oppose Sotomayor regardless of her sex, ethnicity, or impoverished childhood.

–To oppose a nominee because of his or her sex, race, ethnicity, or background is to act on bad reasons.  Why then is it acting on good reasons to confirm a judge on such grounds–or to nominate one in the first place?

–The Republicans should thus do Judge Sotomayor the great honor of taking her thinking seriously, after the irresistibly ritual celebration of her story and background.  She has been a judge for years, and judges think for a living–so the focus should be kept on what she has done and said that gives us an inkling of her thinking.

–We are told that Judge Sotomayor has been reversed at a very high rate by the Supreme Court.  This is not necessarily disqualifying.  By nominating her, President Obama has suggested the possibility that he believes she should not have been reversed so often–that she was right and the Court was wrong in at least some of those cases.  Even if he has not thought that through, he clearly wants the Court to move in a new direction thanks to the addition of Sotomayor to the bench–else why choose her?  So Republicans should feel free to explore–including by asking her about–those cases in which she came down one way and the Supreme Court came down the other way. That would include Ricci v. DeStefano, if it comes out as a reversal of Judge Sotomayor.

–By all means, she should be asked about her remark that the circuit courts “make policy” and “make law,” and her praise of the “wise Latina” as wiser than the average white guy.  But these strike me as lines of inquiry with limited mileage.  The hearings should devote much more time to delving into the nominee’s views of major constitutional precedents.  What she thinks of Roe v. Wade is not–repeat not–off-limits.  Even Solicitor General Elena Kagan thinks so, or thought so 14 years ago.

–Judge Sotomayor may turn out to be a vulnerable nominee, but her defeat would of course require some Democratic defections.  If she turns out to be unstoppable, it would be unforgivable for Republicans to conclude from “we don’t have the votes to stop her” that “we should just go ahead and vote for her ourselves.”  That would be a repetition of the Ginsburg and Breyer disgraces.  Don’t worry about being the “party of no.”  Did that worry Democrats who voted against Thomas, Roberts, and Alito?  Voting against Sotomayor–assuming she is what she now appears to be, a standard-issue left-wing activist–should help Republicans, not hurt them.  The thing to do is to use the next weeks and months for crafting an argument, which could matter in the end far more than the vote that is finally taken.  But the vote is an indicator of how serious you were about the argument.


Subscribe to National Review