Bench Memos

Are Conservatives Losing the Battle But Winning the War?

NRO colleague Jonathan Adler offers this hypothesis in his third-day wrap-up for the Washington Post:

It is almost as if [Judge Sotomayor] and her White House handlers believe that a more forthright explication of a liberal judicial philosophy — a philosophy like that articulated in her speeches and defended by the president — would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal — as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel — does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

Robert Alt is the president and chief executive officer of The Buckeye Institute.

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