Bench Memos

Pat Toomey’s Ill-Considered Support for Sotomayor

I’m very sorry to see that Pat Toomey, the Republican candidate for Senator Specter’s seat, has come out in support of Judge Sotomayor’s nomination on the feeble ground that the Senate’s confirmation role “should be limited to determining whether a nominee is well-qualified and within the legal mainstream.” According to Toomey, “judicial ideology is dealt with when we elect a president.”  (Toomey’s op-ed is replete with lots of other bad arguments). 

Senator Specter couldn’t have said it worse. 

As I’ve written (in my review of BenjaminWittes’s Confirmation Wars):

[M]any Republicans have conditioned themselves to believe that, on a high-profile matter like a Supreme Court nomination, the course that is in their self-interest–the easiest path to reelection–is to keep the nomination from becoming controversial and to support the nominee even, or rather especially, when the nomination is by a Democratic president.…

In the end, the confirmation wars that Wittes decries are only a symptom of a deeper illness–not, as Wittes asserts, the mere growth of judicial power, but rather the judicial usurpation of American citizens’ power of self-governance on a broad range of issues that the Constitution, fairly construed, leaves to the political processes. The long-term remedy for that illness is the appointment of justices who will restore the judicial role to its properly modest realm. That prospect requires that senators be driven to support nominees whose records indicate that they will practice judicial restraint–and to oppose vigorously those whose records indicate they won’t.