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.
How could they actually win this fight? First, by actually fighting.
Again, if they put the pressure on the Democratic senators, they can make the Dems squirm. Break one of them — force one to announce they will vote against her — and the floodgates could open.
Conduct a full debate. Respectfully drag out the process. Be willing to temporarily filibuster the nomination. Again, they should make clear it is temporary. They should say they are willing to move to a final vote, but only after giving themselves enough time to see if they can change enough Democratic minds to win the final vote.
To uphold a temporary filibuster — which ought to be a test of party loyalty just as much as any rules fight — all the GOP Senate caucus needs to do is hold all their members and either pick off one Democrat for one cloture vote, or force a vote when Ted Kennedy or Robert Byrd or some other Democrat isn’t there. This would be an unfair tactic if the goal were to permanently kill the nomination by filibuster. But if the goal is just to extend debate a little longer so that they American people can have the chance to really take it all in, then it’s a perfectly legitimate way to conduct business. Nobody should take advantage of somebody else’s frailty to force a lasting decision on the American polity. But nobody should be averse to insisting on minority procedural rights if the goal is real, honest, timely debate, with a definite end, in order to help educate that same polity.
Even now, with the hearings off to a decent but not totally effective start, Republican senators can turn the tide on this nomination if they just apply themselves fully and intelligently to the task.
And that’s what they, every one of them, should do — and what honest, moderate Democrats should do as well, because nobody with Sotomayor’s record should get within sniffing distance of the highest court in the land.
This is not, in the end, a matter of political posturing. It — the larger issue of what a judge’s role is and of what the Constitution actually means — is a matter of national survival.
And it is the moderate Democrats who should be put on the spot about why they are so blithely putting that survival at risk.
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