Senate Democrats treat judicial nominations as if they are one of those old Aztec games called "tlachtli" in which (according to some experts) the losers are killed on the spot. The Senate Republican leadership instead usually begins a nomination war as if it is playing a spirited game of patty-cake, and ends up acting as if the game is "Old Maid."
On the Supreme Court nomination of Sonia Sotomayor, this dynamic must change.
Already, Judge Sotomayor's unfitness for the high court is abundantly manifest. No non-ethnic white nominee, under any circumstances, could possibly be confirmed if she had uttered, in a formal speech, anything close to the converse of Sotomayor's statement that Latina judges by their very background and nature, including perhaps "physiological" differences, would be more likely to reach "correct" decisions than would a white male. Especially since it was not a mere throwaway line, but instead amply defended throughout her speech, the statement is so racist in nature that it is utterly disqualifying. Combine it with a whole adult lifetime spent in pursuit of such racialist (if not racist) aims -- approving blatant discrimination against white firefighters, opining that states have no right to bar imprisoned felons from voting if the prison populations are disproportionately non-white, and a whole host of other outrageous stances -- and the only conclusion is that all reasonable senators of both parties should oppose Sotomayor by every legitimate means.
The nomination is an abomination, and it must be stopped.
First, the Republican leadership needs to "man up." It matters not how firmly the GOP's ranking Judiciary Committee member, Alabama's Jeff Sessions, does his duty if Leader Mitch McConnell and his cohorts continue past records of showing backbones as firm as cooked spaghetti. They should not be cowed by the fact that Sotomayor is Latina. They should not be cowed by any political fears. When one has already lost some net 16 Senate seats in just two cycles, one doesn't have much left worth protecting. And when unimpeachable principle is so obviously at stake, stances on principle tend to sway voters in one's direction. It is abundantly clear that the American people overwhelmingly reject explicit racial preferences of the sort Sotomayor approves, that they reject identity politics, that they reject felon voting, that they reject judges ruling based on personal beliefs rather than on the law, that they reject President Obama's "empathy" standard, and that they reject abuses of eminent domain of the sort Sotomayor has countenanced.
No leader worth a plugged nickel would fail to make this case. This is not a matter of smears, or character assassination, or taking anything out of context; it is a simple matter of soberly analyzing the clear record, and of comparing it with previous, unambiguous standards of fitness for the Supreme Court. Quite literally, no other valid conclusion is possible, other than that Judge Sotomayor merits no promotion, no matter how appealing her personal story or how strong her character or how many years she has been a judge. Nobody with her oft-stated views -- including her outright acknowledgement that she cannot mete out the law with objectivity -- could possibly take the judicial oath in good conscience without doing triple-twist flips of self-justifying but indefensible attempts at logic.
Again, though, how can the appointment be blocked?
The answer lies in the duty to conduct high-toned debate for the benefit of the public. If full, open, fair, respectful debate doesn't sway public opinion enough to start swaying senators against Sotomayor, then she'll be confirmed. But if Republican leaders don't insist on full, open, fair and respectful debate, and if they don't enter the debate with a firm and justifiable conviction that Sotomayor is legitimately unfit to be on the Supreme Court, then they will have again sunk to the level of Old Maid players -- and weak ones even by the standards of that genteel game.
To achieve full debate, every Republican member of the Judiciary Committee should reach out to every Democratic senator with whom he has a civil relationship. Every committee member should explain that they will be tough but fair and respectful -- and should commit to observance of traditional procedural niceties if allowed a thorough airing of the issues. But they should demand in return that the Democrat withhold judgment until seeing the full record. Each Republican should then ask Sotomayor a series of precise questions, questions that are not open-ended, questions that do not allow Sotomayor to change the subject or walk away from her own record. (In a future column I will list a number of such questions.)
The idea is not to play "gotcha," not to insinuate that Sotomayor is a liar, not to insinuate that she has a character defect -- but only, for purposes of public elucidation, to demonstrate why her views on judging are antithetical to the very Constitution she would be sworn to serve.
If the committee, as expected, eventually forwards the nomination to the full Senate, the Republicans should insist that the final vote not be rushed. They should insist that debate be held as much as possible in primetime, so that more of the American public can watch it. And they should build a painstaking case, based on logic and tradition and facts and evidence, that Sotomayor should be voted down.
Finally, they -- every Republican, including the thoughtful "Maine sisters" Olympia Snowe and Susan Collins, should be convinced to be on board on this with all the enticements and discipline available to the leadership -- should hold in reserve the right to temporarily filibuster the nomination.
The "temporarily" part is the key. The idea is this: Public debate is worthwhile only if the public actually has a chance to weigh in based on all the evidence. If the final vote is rushed before the public has had a chance to consider and cogitate on the debate, then the debate will have been meaningless.
Originally, the filibuster was used not as a way to kill bills or nominations, but to extend honest debate. (Quite arguably a permanent filibuster used to kill a judicial nomination is an abomination itself to the constitutional structure. That's what the well-motivated "nuclear/constitutional option" was all about. But a permanent filibuster is not what I'm advocating here.)
If and only if the Democrats try to unfairly stifle or rush debate, and if and only if there are signs that the public is moving against Sotomayor or that any Democratic senators may be wavering… then the filibuster should be used.
Here's how it would work. The GOP leaders would announce from the start that they think they can change some minds and that more debate would be relevant. They would announce from the start that they want no more than a specified number of additional hours of honest debate. They would announce from the start that they are prepared to filibuster unless and until all those hours are granted, and that they will deny cloture as many times as necessary to secure those additional hours. But they would pledge, from the start, that they will stop filibustering and allow a final vote, up or down, whenever those hours have been exhausted.
If their arguments aren't working to produce a public groundswell, then so be it. But if their arguments are moving public opinion and forcing self-proclaimed "moderate" Democrats -- Baucus, Bayh, Begich, Bennett, Byrd, Carper, Conrad, Dorgan, Gillibrand, Hagan, Johnson, Landrieu, Lieberman, Lincoln, Nelson, Pryor, Shaheen, Tester, Warner -- to feel some heat and reconsider, then the Republicans should exhaust every hour they have demanded.
How many hours? However many were devoted to the longest previous floor debate on a Supreme Court nominee.
The Republican leaders should trust the good sense of the American people to recognize honest, aboveboard debate when they see it, and of the American people to appreciate it. The leaders should provide just such debate. No insults. No gamesmanship. Plenty of unfeigned courtesy. But dogged persistence nonetheless.
Former Vice President Dick Cheney is proving that just such a principled commitment to public advocacy can be effective, even from an opening position that appears to be weak and unpopular. Cheney is proving what too many Republican politicians have forgotten: that patient, honest advocacy is a virtue.
And if the cause is worth it -- and few causes could be more worthy than protecting the Constitution -- then the political fallout is worth risking. Indeed, it is more worth risking from a position of apparent weakness than from one of strength, because the room to gain is greater than the room to fall.
So many underpinnings of American government, culture and tradition are under assault right now that somebody, somewhere must rally the cause of ordered liberty before it is too late. This is the time. This is the fight. And this is what the old-fashioned filibuster is for.