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Third Branch Conservatism

It will be a mark of failed Republican leadership if a confirmation vote on Sonia Sotomayor occurs before the August recess.

By 6.24.09

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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. 

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About the Author

Manuel Miranda is chairman of the Third Branch Conference. He served in 2003 as counsel to Senate Majority Leader Bill Frist (R-TN).