Tuesday, May 26, 2009

My Advice for Conservatives Re: Judge Sotomayor [UPDATED]

First and foremost: Relax. Don't get worked up. Don't make her out to be the devil incarnate. She's not.

Conservatives and Republicans would be wise to hold their fire on this pick. She's going to be confirmed anyway, and the conservative cause has very little to gain by standing athwart this historical nomination (the first Latina Supreme Court nominee) yelling "Stop!" In fact, they have much to lose (i.e. what's left of the Latinos who still vote for them) by being seen as opposing this nomination.

Besides, Feddie is right. We've dodged a bullet. It could have been much worse, and I'm actually a little surprised Obama didn't go ahead and use some political capital while he still has it to go for broke on as big a lefty ideologue as he could find. Believe me, there are some disappointed folks on the left who likely view this pick similarly to how some of us on the right viewed the Harriet Miers pick.

The better strategy for the right is to let Obama have this one ... maybe even confirm her 100-0. Ask tough questions during the confirmation hearings, but don't go overboard, and definitely don't be seen as hostile to her personally. State openly for the record that you're willing to give the President the benefit of the doubt on his first pick, but that future nominees will draw much tougher scrutiny.

And then draw the line in the sand with Justice Stevens' replacement.


UPDATE
Some interesting facts about Judge Sotomayor include that she would be the 6th Catholic currently sitting on the Supreme Court (joining Chief Justice Roberts and Associate Justices Scalia, Kennedy, Thomas, and Alito), and that, as a federal appeals court judge in 2002, she ruled against a pro-abortion group that had challenged the Mexico City Policy (which prohibits foreign organizations receiving U.S. funds from performing or supporting abortions). In her opinion, Sotomayor ruled that the government can favor the anti-abortion position over the pro-abortion position when deciding how to spend public funds.

So, given this history, another tactic conservative Senators should use during the confirmation hearings is to get Judge Sotomayor on the record saying things that will alienate the President's hard-core left supporters. That would be awesome.


UPDATE #2
More from Feddie here. I concur.


UPDATE #3
Michael Denton offers his take.


UPDATE #4
NARAL Cautious on Sotomayor?


UPDATE #5
I'm beginning to think that certain pro-life organizations already had their anti-nominee press releases ready to go this morning when Obama made his Supreme Court announcement, and that they just filled in the blank once they learned the name.


Previous Pro Ecclesia posts on this subject:
Conservatives, Liberals, and Supreme Court Picks

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22 Comments:

At 5/26/2009 11:12 AM, Blogger Michael R. Denton said...

I agree. This is a positive as pro-lifers could have hoped for. While her 2nd amendment stance seems a little nutty, I think standing back is very wise.

 
At 5/26/2009 12:09 PM, Blogger Zach said...

Jay, I tend to agree, but this line of reasoning is very similar to what Regular Guy Paul and I were arguing on Sebelius. Is the difference in your eyes merely quantitative?

 
At 5/26/2009 12:22 PM, Blogger Jay Anderson said...

You'll have to refresh my memory on what you and Paul were saying re: the Sebelius nomination.

For my part, I opposed it and thought that the Republicans should have opposed it because she was the WORST of the worst possible candidates for the job. Sotomayor, on the other hand, is, as Feddie describes her, "the best of the worst".

I am also suspicious of playing politics when it comes to Supreme Court appointments. My view is that a President is entitled to Supreme Court nominees of his choice, barring extreme exceptions. In contrast, with political appointees such as cabinet secretaries who will play a more direct role in the shaping of public policy, I EXPECT opposing Senators to play a more political role, ESPECIALLY for extreme cases such as Sebelius. And I certainly don't expect them to go out of their way - like Brownback did - to provide political cover for such extreme nominees.

 
At 5/26/2009 2:20 PM, Blogger Michael R. Denton said...

I concur with the last update. I got an email from the Bioethics Defense Fund that was kind of bumbling. Really, there isn't any ground other than she's liberal to assume that she's anti-life. Granted, that's something to make us wary but hardly a reason to mount an opposition campaign

 
At 5/27/2009 12:02 AM, Blogger Jean M. Heimann said...

Catholic? There is no way this woman is Catholic! She may be one of those who refer to themselves as Catholics, but she most likely is one of those Catholics who have excommunicated themselves from the Church by their pro-death stance.

Go here http://catholicfire.blogspot.com/2009/05/fr-frank-pavone-on-judge-sonia.html to learn what Fr. Frank Pavone has to say about her.

 
At 5/27/2009 12:24 AM, Blogger Jay Anderson said...

Fr. Frank Pavone, National Director of Priests for Life, says he has just one question about Judge Sonia Sotomayor as she is nominated by President Obama for the Supreme Court: "Does justice include the right to tear the arms and legs off of babies, crush their skulls, and treat them as medical waste?"

"We all draw the line somewhere. An avowed racist or anti-Semite is not acceptable on the Supreme Court. Why should we give a pass to the violence of abortion?"


Okay? So what did he say about her? All I see is a question that he would like for someone to ask her in her confirmation hearing.

And, again, on what basis to you conclude that Judge Sotomayor has a "pro-death stance"? The mere fact that she was nominated by Obama? She may very well have a "pro-death stance", but absolutely NOTHING in her judicial record indicates how she will vote on the issue of abortion.

Oh, wait. There ARE a couple of cases out there pertaining to abortion: the one where Judge Sotomayor UPHELD the Mexico City Policy and the one where Judge Sotomayor ruled in favor of pro-life protesters who had their civil rights infringed.

Now, there is little doubt in my mind that Judge Sotomayor is a conventional liberal and, if given the opportunity, probably would vote to uphold Roe v. Wade. But we don't KNOW that, and there is nothing in her record to give us any certainty as to how she would rule. The charitable thing would be to wait until the confirmation hearings to see how she answers the questions ... like the one, for instance, that Fr. Pavone poses.

 
At 5/27/2009 1:24 PM, Anonymous Victor said...

Without commenting on the specific cases of Sotomayor and Sebelius, I'd actually slice it the other way.

I think the president should get more deference on Cabinet choices than his judicial picks, because the former are *his* team that he chooses to (theoretically at least) only execute his orders. And they serve at his pleasure. On the other hand, the courts are supposed to be an independent branch of government, passing judgement on the other two. Plus life-tenure means there is no way to scrutinize post-facto and a bad choice (from whatever perspective) will be around much longer.

That said, I do think presidents should generally get their pick of judges too.

 
At 5/27/2009 1:37 PM, Blogger Jay Anderson said...

I guess my point was that playing politics doesn't seem as unseemly for political appointments such as cabinet positions. Inserting politics into the judicial confirmation process, however, does negatively impact the independence of the judiciary.

http://proecclesia.blogspot.com/2007/08/change-in-tactics-for-judicial-leftists.html

 
At 5/27/2009 3:59 PM, Blogger Paul, just this guy, you know? said...

I've been thinking about this Jay, and I've decided that I disagree with you.

Granted it could have been worse.

Granted, too, that we can't win.

Remember the Alamo. Just because we can't win doesn't mean we shouldn't fight. Just because it could have been worse doesn't mean we have to accept this.

If our side's culture warriors never join battle, how can we hope to gain experience? How can we hope to toughen ourselves? And how can we avoid our opponents concluding that we lack the dedication to fight for what we claim to believe?

The liberals believe that what's theirs is theirs and what's ours is negotiable. When we have a president in the White House, we have to fight like dogs to get him confirmed. They should face the same obstacle.

After all, who will there be to think well of us if we just let this one slide by?

 
At 5/27/2009 4:05 PM, Blogger Jay Anderson said...

Our disagreement, Paul, appears to be even more fundamental than a mere disagreement over tactics.

I am of the opinion that, absent extreme circumstances (which really do not exist with Sotomayor, regardless of the rhetoric being thrown around by some of her opponents), a President is entitled to the Supreme Court nominees of his choice.

 
At 5/27/2009 4:10 PM, Blogger Jay Anderson said...

And it does seem that the primary basis for opposition to Sotomayor is that Obama nominated her. That's just not a good enough reason for me to go into full-fledge culture war mode (see, e.g., my opposition to Obama being honored at Notre Dame) in opposition to her confirmation.

 
At 5/27/2009 5:05 PM, Blogger Paul, just this guy, you know? said...

... a President is entitled to the Supreme Court nominees of his choice.

You're right, this is the core of our disagreement. To me, this sentiment is a quaint old custom which it would be nice to return to. Them first.

Until then, we should insist that even a bad president make good appointments. We'll have to live with this long after Obama is gone.

No, the reason to oppose Sotomayor is not that Obama nominated her, but that she (like Obama) believes that her personal experience, her gender, her ethnicity, and her personal desires all trump what the law says, whenever she wants them to. She supports racial discrimination against whites. Too, she's been described as a "bully" (anyone remember John Bolton's treatment?), and she thinks that the courts are where policy is made. She is clearly unsuited to be a judge in any court, and especially the Supreme Court.

And in all likelihood, she thinks Roe is good law.

We should give a Democrat president's appointments no more deference than was given to a Republican president's. And at least when we call her qualifications into question, it'll be true.

 
At 5/27/2009 8:19 PM, Blogger Jay Anderson said...

If it's not Sotomayor, it'll be someone MUCH worse. And as Darwin points out: "... if we can both conserve our political energy and provide Obama with some positive reinforcement that sticking to bland conventional wisdom candidates will be rewarded with a lack of partisan rancor, so much the better... Obama could have stuck it to us a lot worse — and since kicking a fuss will achieve nothing other than encouraging the administration to play only to their base next time with a strictly ideological pick (and win the pro-life movement more of a reputation for constant shrillness) this would be a good time for us to hold our fire ..."Even Americans United for Life, despite its criticisms of her, rated Sotomayor as the least offensive of Obama's 9 most likely choices. Do you think you'll be successful in derailing all 9 of those folks? Do you think Obama will suddenly say, "Gee, now I see the light. I think I'll nominate Edith Jones instead."?

Feel free to oppose this nomination if you wish, but this particuar fight ain't my fight.

 
At 5/27/2009 10:24 PM, Anonymous paul zummo said...

And it does seem that the primary basis for opposition to Sotomayor is that Obama nominated her. This seems a bit overstated to me. Her record is certainly one of a lefty activist, even she has a few decent decisions on her record. If we were to set aside partisan politics for the moment, I would suggest that few if any of us would have picked Sotomayor for the Court. She isn't worth a huge fight simply because we're not going to do any better. But if I were in the Senate it would be an easy no vote for me to cast.

 
At 5/27/2009 10:54 PM, Blogger Jay Anderson said...

I don't doubt for one minute that she's not a constitutional conservative. But then, did anyone really expect that Obama was going to nominate a constitutional conservative? And, as she appears to be the least objectionable of the bunch from which Obama was choosing, it appears to me that people had already made up their mind to oppose whoever Obama chose and went into attack mode AS SOON AS the nomination was announced. So, I stand by my statement that opposition to her appears to be based mostly on the fact that Obama nominated her.

If I were in the Senate, I'd ask her some very tough questions (you know, because given my stellar legal credentials I'd almost certainly be on the Judiciary Committee), but, barring any extreme disqualifying factors, I'd likely vote to confirm her.

 
At 5/28/2009 5:30 AM, Anonymous paul zummo said...

I guess what I'm trying to say is that even a relatively good pick by Obama is still a bad pick in the grand scheme of things.

 
At 5/28/2009 6:16 AM, Anonymous paul zummo said...

Maybe another way to put it is this: it's not that I oppose her because Obama appointed her, but that, based on his constitutional philosophy, it's expected that Obama would have appointed someone I would be inclined to oppose. That perhaps sounds circular, but think of it this way. It's not that I will dislike a column written by Richard McBrien simply because it has his byline, but that McBrien being who he is, is likely to write a column I would despise.

There's certainly a possibility of bias, but I don't think my opposition (I don't want to speak for all conservatives) is irrational as a cursory glance at her record seems to confirm my suspicions of her.

Of course this is expected. That's why I voted against Obama. That's why I agree with you in the larger sense that throwing all of our weight against her is an exercise in futility. I just differ in the sense that I feel somewhat less constrained in being at least somewhat vocal in my opposition.

 
At 5/28/2009 8:33 AM, Blogger Jay Anderson said...

I don't disagree with you, Paul. Like Feddie says, "she's the best of the worst".

So, while I'm somewhat relieved it wasn't worse, I still recognize that I disagree with her fundamentally on the matters of the role of the courts in making public policy and on constitutional interpretation. Do I think she should be on the court? NO. I disagree with her jurisprudence and think she is likely to reach constitutionally wrong conclusions. But, again, elections matter and I'm not going to go out of my way to oppose the nomination, especially given the alternatives.

Once again playing make-believe, if I were a Senator, I would voice my opposition to her judicial philosophy, but that doesn't mean I would necessarily oppose her confirmation.

 
At 5/28/2009 9:17 AM, Blogger Paul, just this guy, you know? said...

[If you were in the Senate] I'd likely vote to confirm her.

Do I think she should be on the court? NO.

Jay, these seem contradictory to me.

Years later, no one would remember your questions, only your vote.

 
At 5/28/2009 9:49 AM, Blogger Jay Anderson said...

They're not contradictory.

I believe a President is entitled to his nominees unless there is something extreme or otherwise disqualifying in their record, even if I don't agree with their judicial philosophy. I don't see what's so controversial about that. In fact, it is the opposite view - that otherwise qualified nominees should be opposed because of disagreements over judicial philosophy - that is the controversial development in the confirmation process.

Now, if you want to play by the new, controversial rules that the Democrats set in the Roberts and Alito confirmation hearings, you are perfectly justified in doing so. I choose not to. Not every political disagreement has to turn into a fight, especially when there are few benefits to be gained, and possible great detriment to be inflicted upon oneself and upon the process of judicial confirmation, by doing so.


SIDE NOTE: The break with the traditional method of not opposing nominees for differences in judicial philosophy is a primary reason I hold Joe Biden is so little esteem. That break in the tradition can be attributed to his efforts during the Bork hearings. I have no desire to follow Biden's lead in anything.

P.S. And no one ever remembers how a given Senator voted on a Supreme Court nominee, and I wouldn't care if they did remember how I voted.

 
At 5/28/2009 10:32 AM, Blogger Paul, just this guy, you know? said...

I see your point, but when your opponent employs a weapon, and you dislike it so much that you refuse to employ a like weapon, it puts you at a severe disadvantage.

 
At 5/28/2009 11:16 AM, Anonymous paul zummo said...

Well, I think my position is possibly even more contradictory than Jay's: I oppose her, I wouldn't vote for her, yet I hope she gets confirmed.

A commenter at Paul's website asked a question that makes me wonder how much deference a Senator does owe the President on these nominations. It was a question of how an originalist should view the question of judicial nominations. And while it was framed in such a way as to possibly imply that an originalist ought to hold that a President is owed much deference, I'm beginning to wonder if that's the case.

I think that the Framers viewed the Senate's role in the process as being the place where the nominee is vetted. The necessity of Senate consent sprung from a desire to ensure that the nominee was qualified and free from corruption. So from that point of view, judicial philosophy was not really a concern. But I wonder if developments over the past 60 years or so have made judicial philosophy something that should be a legitimate criteria in the Senate's consideration of a nominee.

Mind you I am not saying that it is, but it something I'm pondering a bit more in light of the question posed to me.

 

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