A story in Monday’s Wall Street Journal indicates that Republicans in the Senate consider Judge Sotomayor’s confirmation to be a foregone conclusion and are trying to determine what the “right” level of “no” votes should be. The story says they would like to get more “no” votes than Chief Justice Roberts received, but something in the mid-20s so that it won’t hurt Republicans with Hispanic voters.
If so, this is an inappropriate and unfortunate foray into political pragmatism when what is required is principled opposition.
Tuesday’s questioning of Sotomayor repeatedly brought out her oft-stated belief that gender and ethnicity should influence court rulings – in direct contravention of our history of “blind justice” and impartiality. That, combined with her statement about the role of appeals court judges being to “make policy” and “make law” — is enough for any rational Senator to oppose her confirmation. Her involvement in radical left-wing groups, and her attacks on gun rights and property rights and her promotion of affirmative action — all confirm that she is a left-wing ideologue, not a fair and impartial jurist.
Even liberal law professor Mike Seidman of Georgetown was disgusted by her about-face during the hearings: “I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified.”
I have been watching judicial confirmation hearings closely for nearly 25 years. When Robert Bork was nominated I was in law school, and ended up doing TV and radio interviews in defense of the Bork nomination. When Clarence Thomas was nominated I was clerking for a federal appeals court judge who went through a contentious confirmation, and was in his chambers when Thomas called to discuss the confirmation process.
I’m aware that the Senate had a long, bi-partisan history of approving judges who were experientially qualified without regard to judicial philosophy. The Democrats ended that tradition by destroying Robert Bork through absurd distortions of his record. They tried the same thing with William Rehnquist and Clarence Thomas, but failed.
If Senators truly believe judges should be impartial interpreters of the law, should not “legislate from the bench,” and should not bring their prejudices into the courtroom, they must oppose the Sotomayor nomination. For Republicans who run for office on these principles, it is even more important that they make a stand.
Some argue that if Sotomayor is defeated, the next candidate might be worse. So what? If she is not qualified, she is not qualified. If the next judge is also a left-wing activist, then he or she should be opposed as well. Senators who believe in the rule of law and oppose judicial activism are obligated to defend those principles every time a president nominates someone who is not committed to performing the constitutional role of a judge.
When Bork was defeated we ended up with Anthony Kennedy – and the Court’s jurisprudence has sufferered dramatically as a result. We have ended up with an internationalist, a judge still searching for a coherent worldview who brought us such confused mush as: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Right.
It is time for at least our Republican senators to stand against judicial activism. You can reach your Senator through the U.S. Capitol switchboard: 202-224-3121.