The 31 Republican senators who voted against Judge Sonia Sotomayor’s confirmation deserve credit for standing firmly against a nominee who has an unsound judicial philosophy and who failed to testify candidly about it.
Given the large Democratic majority in the Senate, Judge Sotomayor’s confirmation was a virtual certainty from the moment that President Obama nominated her. The easy path for Senate Republicans — the path they took in 1993 and 1994 on President Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer — would have been to cave to that political reality and to jump on the Sotomayor bandwagon. Indeed, Sotomayor’s appealing life story and the historic occasion of the first nomination of a Hispanic to the Supreme Court surely made that path all the more tempting.
To their credit, Senate Republicans instead conducted a serious and responsible review of Judge Sotomayor’s record, including her many troubling statements about the nature of judging and her remarkable mistreatment of the claims by New Haven firefighters that they had been discriminated against on the basis of race. That review yielded serious reasons to doubt Sotomayor’s commitment to the judicial obligation of impartiality, doubts that were reinforced by the lawless “empathy” standard that President Obama has endorsed for his Supreme Court picks.
Sotomayor’s unimpressive and, at times, disingenuous testimony during her confirmation hearing compounded the concerns about her judicial philosophy. To the disgust of progressives, Sotomayor unconvincingly tried to masquerade as a judicial conservative. Rather than explain and defend her controversial statements, she implausibly denied that they meant what they plainly said. She dissembled about the hard-left legal positions — on racial quotas, abortion, and the death penalty — that she supported in her long tenure in various leadership roles at the Puerto Rican Legal Defense and Education Fund. In perhaps her most brazen deception, Sotomayor repeatedly denied and obscured her vocal support for freewheeling resort to foreign and international law in interpreting provisions of the Constitution, only to have post-hearing questions finally expose the truth. She also failed to satisfy concerns about her stance on Second Amendment issues.
Unwilling to defend Sotomayor’s boundless vision of the judicial role, Democratic demagogues are vilely contending that opposition to Sotomayor is anti-Hispanic. We have much higher regard for the intelligence of Hispanic voters than those demagogues evidently do. If further evidence were required that what is at issue is genuine and well-founded concern over Sotomayor’s unsound judicial philosophy, the fate of President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit provides it. That nomination was widely perceived as a stepping stone on Estrada’s path to the Supreme Court. Republicans ardently supported Estrada’s nomination, and Democrats vigorously obstructed it, resorting even to an extraordinary, and ultimately successful, filibuster.
Some Republicans who have chosen to support the Sotomayor nomination, such as Sen. Lindsey Graham, have expressed the hope that their doing so might help make Supreme Court nominations less contentious. This is a worthy goal, if one that should properly be subordinated to the defense of the Constitution. But while we share these senators’ wish that nominations be less contentious, we reject their naïve strategic judgment. In the battle over judicial philosophy, the tactic of unilateral disarmament that Republicans adopted on the nominations of Justices Ginsburg and Breyer didn’t induce reciprocal treatment by Democrats of the nominations of Chief Justice Roberts and Justice Alito.
The best way to make Supreme Court nominations less contentious is to limit the Court to its proper constitutional dimensions. That task requires in turn the forging of a strong public consensus in favor of nominees who understand and respect the proper role of the Supreme Court in our constitutional system — and against those nominees who don’t. Those Republicans who made the case against Judge Sotomayor’s judicial philosophy are to be commended for advancing that cause.