When Senate Judiciary Committee Chairman Patrick Leahy (D-VT)
announced Tuesday that confirmation hearings would begin for
Judge Sonia Sotomayor on July 13, Republicans cried foul.
“[Democrats] want the shortest timeline in recent memory for
someone with the longest judicial record in recent memory,”
complained Senate Minority Leader Mitch McConnell (R-KY) to the
Associated Press. “This violates basic standards of fairness and
it prevents senators from carrying out one of their most solemn
duties.”
Some would say that duty is just to hold hearings and then
rubberstamp whoever the president nominates, barring some major
scandal. In fact, Republicans made versions of this very argument
throughout the Bush years when decrying Democratic efforts to
deny qualified conservative judicial nominees a straight
up-or-down vote.
You can disagree strenuously with these aggressive and
unprecedented tactics, but you have to grant this much: Democrats
are much more serious about imposing their vision of the
Constitution — a vision that reduces it to the legal equivalent
of Robert’s Rules of Order — on the federal judiciary than
Republicans are theirs.
Democrats increasingly oppose serious conservative nominees to
lower federal courts and are virtually guaranteed to oppose a
recognizably conservative pick for the Supreme Court. Republicans
overwhelmingly voted for both of Bill Clinton’s nominees to the
Supreme Court. Stephen Breyer was confirmed by a vote of 87 to 9.
Ruth Bader Ginsburg, a former chief litigator of the ACLU’s
feminist legal project, sailed through by a vote of 96 to 3.
Twenty-two Democratic senators voted against John Roberts for
chief justice, including the man who is now president of the
United States. Only four Democrats voted for Samuel Alito and
Sen. John Kerry (D-Mass.), the liberal party’s 2004 presidential
nominee, led an unsuccessful filibuster effort. Clarence Thomas
was barely confirmed by a 52 to 48 margin back in 1991, thanks to
a much larger bloc of conservative Southern Democrats in the
Senate than exists today.
Democratic presidents haven’t elevated even an accidental
conservative to the Supreme Court since John F. Kennedy tapped
Byron “Whizzer” White in 1962. Every subsequent Democratic
nominee has supported Roe v. Wade, which comes as no
surprise because every Democratic presidential candidate promises
to make support for the 1973 decision a litmus test.
While Republican presidential candidates have (usually feebly)
opposed abortion for almost 30 years, they seldom make an
equivalent pledge. In fact, they usually promise to have no
litmus tests for their nominees, even though Roe is as
much a litmus test of one’s commitment to the Constitution as
one’s position on abortion. Consequently, their Supreme Court
justices come down on both sides of Roe and many other
constitutional questions. Even Ronald Reagan appointed two
pro-Roe justices.
In a perfect world, presidents of both parties would appoint
qualified judges who could be confirmed regardless of their views
or judicial philosophy. But when an ACLU litigator is barely
opposed by any Republicans and John Roberts is opposed by
mainstream Democrats, one-party deference to the president isn’t
an act of fidelity to some vital political custom. It is an act
of unilateral political disarmament.
Worse, as Ramesh Ponnuru argues in a perceptive essay in the
current National Review, we don’t live in a world where
judges feel constrained in their roles by the Constitution or
written law. Sotomayor’s much-quoted remark that the courts are
where policy is made was a gaffe only in the sense of the word
favored by Michael Kinsley: an accidentally admitted truth. The
Supreme Court has become a national policymaking body on
abortion, capital punishment, school choice, religious freedom,
and a whole host of other issues.
Nor will it do to argue, as Charles Krauthammer did recently,
that elections have consequences. Barack Obama will appoint
judges who take positions on same-sex marriage, the war on
terror, gun control, and other topics that he was himself afraid
to take during the campaign. These judges will long outlast the
Obama administration. They will be able to shape policy for life,
long after any buyer’s remorse on the part of the American
electorate has set in concerning their 2008 presidential choice.
The fact that Sonia Sotomayor’s record and judicial philosophy —
as opposed to her widely criticized “wise Latina judge” speech —
are within the mainstream of Democratic judicial appointees
doesn’t change anything. Deference by Republicans coupled with
activism by Democrats is also having the effect of pushing the
legal mainstream to the left, with Sotomayor included but Robert
Bork and in some minds Sam Alito excluded.
As the Sotomayor hearings approach, Republicans need to continue
do what they first did when protesting George W. Bush’s aborted
nomination of Harriet Miers: take the judiciary as seriously as
the Democrats do. The days of Antonin Scalia winning confirmation
with overwhelming Democratic support are over. So are the days of
strong checks against federal judicial power. Until they return,
the days of Republican deference to Democratic judicial nominees
should be over too.
