From the moment that Associate Justice David Souter announced his
retirement, media fascination with conservative reaction ran
parallel to guessing the president’s choice. After Judge
Sotomayor was named, it surged. Then something happened.
One week after the president’s announcement, the largest
coalition of conservative leaders ever to join on judicial
nominations, spanning social conservatives to tax reformers,
family associations to libertarians, and, for the first time, the
Gun Owners of America, did something less newsworthy than the
news press wanted. They sent Republican senators a letter to say
exactly what conservatives expected.
As the Third Branch Conference, 121 well-known conservatives,
such as Ken Blackwell, Grover Norquist, and Richard Viguerie,
including leaders of policy and grassroots organizations from
Alaska to Florida; radio talk hosts, and several members of the
Republican National Committee, asked Senate Republicans for one
thing only: a “great debate…suitably catalyzed to the American
people ”
The letter wasn’t sparky, so journalists and bloggers wrote the
story to their liking. Appearing on Hardball that night,
I realized that I was merely a prop for a story that Chris
Matthews (and later Keith Olbermann) had pre-written without
facts.
When reporter Manu Raju of Politico called, I told him
that we were not asking for an obstructive filibuster as
Democrats had waged against 10 Bush appellate nominees and Judge
Alito; that we discouraged such a filibuster. I explained that we
were asking Republicans only to consider a traditional
filibuster, together with moderate Democrats, if needed to ensure
sufficient debate, not to obstruct a vote. The young man was
honest. “That is hard to explain,” he said. And he didn’t try.
As the story played out, conservatives had demanded that
Republican senators filibuster to block the Sotomayor nomination.
Period.
Conservatives requested that the Sotomayor debate and final vote
“honestly [display] the differences between Republicans and
Democrats to the American people” and serve to “alert Americans
to the consequences of the popular vote.” We also asked for a
debate to “make crystal clear why Americans should believe that
Republicans are intelligent defenders of the Constitution, or
not.” There is, after all, some doubt.
Too soon, the Senate will start and end hearings on Judge
Sotomayor’s qualifications. The first part of a Senate debate
will be over — the easy part. The question remains whether
afterward history will be disappointed.
The mark of failed Republican leadership — already strong-armed
by Democrats on hearing scheduling — will certainly be
allowing a confirmation vote before the August recess that denies
time to senators and to the American people. Republican leaders
will fail too if their only goal is to mirror the 22-22 Democrat
vote for Judge Roberts and simply deliver 20 Republicans for and
20 against.
Republican opportunity for statecraft is in ensuring that debates
on the Senate floor are not business-as-usual, but rather an
inspired effort to highlight the issues that both define and
divide us as a people. Even Republican senators who vote to
confirm the judge can sound an alarm by explaining the risk of
any more justices influenced by bias.
The emphasis is not on time. A great debate does not have to be
long. But it should be spectacular; enough to illuminate what is
at stake. We have seen such effort from Republicans before. It is
possible.
It was 2003. When Democrats blocked a vote for appellate court
nominee Miguel Estrada, after seven weeks of debate, and used the
first-ever filibuster against a nominee-with-majority-support,
Republicans responded by making them do it seven more times;
progressively unnerving Democrat leader Tom Daschle, soon to face
election defeat.
Senate Republicans mounted the greatest Senate effort on court
nominations in American history, on and off the Senate floor.
They staged four extraordinary floor events to take the debate to
the people; events that Senate scholars called unprecedented.
Then as now, Republicans did not ask for permission, and even
took Democrats by surprise.
By December 15, 2003, 315 editorials that year had favored
Republicans on the debate over judges, while only 54 favored
Democrats. Polling conducted in April 2003 found that
nearly two-to-one American opinion on the debate favored
Democrats. By December, after Republicans applied creative
effort, the same poll showed a reversal of public opinion
favoring Republicans nearly two-to-one.
The pollsters concluded: “a determined effort on the part of
congressional leadership can shape public opinion.” Republicans
lost Senate votes to Democratic filibusters that year, but
reshaped public opinion, and won the great debate — and the
election of 2004.
Americans should consider the consequences of elections, in more
than one news cycle. No doubt some Senate Republicans, who care
mostly about their own futures, rather than ours, will want to
get the Sotomayor vote done with. That is why this confirmation
is a test of whether Republican leaders, with flawed outreach and
understandings, are suited for their role, or should step aside
in favor of a new generation with vim and dare.
