Why are moderate Democrats not under fire?
Republican senators are not the ones who should be worrying about whether or not to vote to approve Judge Sonia Sotomayor for the Supreme Court. Instead, so-called “moderate” Democratic senators ought to be sweating buckets, caught between their extremist net-roots and their fealty to the views of the vast majority of their constituents.
Republican senators by now easily could have, and should have, put the onus on Mary Landrieu, Mark Pryor, Blanche Lincoln, Kay Hagan, Byron Dorgan, Kent Conrad, Evan Bayh, Mark Begich, Michael Bennet, Robert Byrd, Tom Carper, Tim Johnson, Herb Kohl, Joe Lieberman, Claire McCaskill, Bill Nelson, Ben Nelson, Jeanne Shaheen, Jon Tester, Arlen Specter, Mark Warner, and especially Jim Webb.
All of those senators are likely to feel serious heat if their constituents know that Judge Sotomayor has written twice the right to bear arms is not a “fundamental right.” They should get knock-kneed if their constituents grow concerned about her extremist position in favor of “eminent domain” seizures of private property. Obviously they already are under a little pressure because of her “wise Latina” remarks replete with talk about “inherent physiological differences,” the “facts I choose to see,” and the repudiation of “objectivity,” “impartiality,” and “neutrality.” And they should be already running for cover, any cover, as far away as possible, from Sotomayor’s bizarre opinion that currently incarcerated murderers and rapists have a constitutional right to vote while behind bars.
Repeat that: Judge Sotomayor, in Hayden v. Pataki, ruled that if a disproportionate number of blacks and Latinos are behind bars in a state, they have the right to vote while still in prison.
And those aren’t the only issues, not by far, that should make Sotomayor anathema to the broad middle of the American electorate.
If Republican senators other than Alabama’s Jeff Sessions and a few others had done their job well before the hearings began, the public already would be far more aware of these things than they are now. The senators should have encouraged groups like the National Rifle Association to actively oppose Sotomayor. They should have specifically challenged their Democratic counterparts, on the floor of the Senate, to defend these outrageous stances, speeches and actions of the nominee. They should have written their weekly columns for home-state papers explaining why Sotomayor is not fit for the Supreme Court. They should have encouraged Republican House members from their states to give them cover by also writing columns for hometown papers and making speeches on the House floor about the importance of defending the Constitution.
And they should have, could have, done so entirely on principle, without smearing Sotomayor, without taking her the slightest bit out of context, and without showing disrespect for her legitimate accomplishments or compelling life story.
They should have done so because the Constitution is worth the effort. The Constitution guarantees our freedom. The Constitution guarantees a system of government through which the consent of the governed can be rationally applied to public policy.
They should have done so because there are plenty of other left-of-center potential high court nominees who would have been far from ideal from a conservative standpoint, but whose rulings and writings, speeches and stances, are nowhere near the affront to fundamental American principles and values as Sotomayor’s are.
They should have done so because conservative positions on the judiciary are far more popular than liberal positions. Polls consistently show as much. On the general approach to judging, on making sure judges are restrained by the actual words of the Constitution and laws, and on the “results” of judging on issues ranging from partial birth abortion to property rights to gun rights to the Pledge of Allegiance to non-denominational faith in the public square to racial quotas and preferences to judicially imposed homosexual marriage to the rights of free association for Boy Scouts to….well, you can just about name the “issue,” and conservative judges, without even being result-oriented, reach more popular decisions than liberal ones do because a proper neutral reading of the Constitution happens to lead them to those decisions.
When Republicans senatorial candidates campaign heavily on judicial issues in 2002, they won. When they did so in 2004, they won. When President Bush campaigned on the issue in 2004, it gave him a consistent boost. But when Republicans stopped really fighting about judges in 2006 and 2008, they lost — again and again and again.
So, on judges, the politics are right and the principles are right and the fight is important. So why not fight, and fight, and really, really fight some more?
Republican senators cannot worry about Hispanic citizens mistaking their stand on principle against Sotomayor. It is not a stand against Hispanics. It was Democrats, not they, who opposed brilliant Honduran immigrant Miguel Estrada “because he is Latino” — yes, in the Democrats’ own words (as unearthed by now-Third Branch Conference leader, then Senate staffer, Manual Miranda, another American of Hispanic heritage). If the Republican senators cannot figure out a way to make the distinction between honest opposition to Sotomayor and anti-Hispanic bigotry, then they are pathetically inept politicians.
Besides, if the principle is important enough — and no principle could be more important than blocking the lifetime appointment of somebody as beyond the pale as Sotomayor — then it is worth the risk. Senators aren’t elected in order to be re-elected; they are elected in order to do the right thing, to become statesman, to protect the noble American experiment in ordered liberty.
And, to repeat a line from last week’s column, you can’t win if you act like you can’t win.
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