When Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced Tuesday that confirmation hearings would begin for Judge Sonia Sotomayor on July 13, Republicans cried foul. “[Democrats] want the shortest timeline in recent memory for someone with the longest judicial record in recent memory,” complained Senate Minority Leader Mitch McConnell (R-KY) to the Associated Press. “This violates basic standards of fairness and it prevents senators from carrying out one of their most solemn duties.”
Some would say that duty is just to hold hearings and then rubberstamp whoever the president nominates, barring some major scandal. In fact, Republicans made versions of this very argument throughout the Bush years when decrying Democratic efforts to deny qualified conservative judicial nominees a straight up-or-down vote.
You can disagree strenuously with these aggressive and unprecedented tactics, but you have to grant this much: Democrats are much more serious about imposing their vision of the Constitution — a vision that reduces it to the legal equivalent of Robert’s Rules of Order — on the federal judiciary than Republicans are theirs.
Democrats increasingly oppose serious conservative nominees to lower federal courts and are virtually guaranteed to oppose a recognizably conservative pick for the Supreme Court. Republicans overwhelmingly voted for both of Bill Clinton’s nominees to the Supreme Court. Stephen Breyer was confirmed by a vote of 87 to 9. Ruth Bader Ginsburg, a former chief litigator of the ACLU’s feminist legal project, sailed through by a vote of 96 to 3.
Twenty-two Democratic senators voted against John Roberts for chief justice, including the man who is now president of the United States. Only four Democrats voted for Samuel Alito and Sen. John Kerry (D-Mass.), the liberal party’s 2004 presidential nominee, led an unsuccessful filibuster effort. Clarence Thomas was barely confirmed by a 52 to 48 margin back in 1991, thanks to a much larger bloc of conservative Southern Democrats in the Senate than exists today.
Democratic presidents haven’t elevated even an accidental conservative to the Supreme Court since John F. Kennedy tapped Byron “Whizzer” White in 1962. Every subsequent Democratic nominee has supported Roe v. Wade, which comes as no surprise because every Democratic presidential candidate promises to make support for the 1973 decision a litmus test.
While Republican presidential candidates have (usually feebly) opposed abortion for almost 30 years, they seldom make an equivalent pledge. In fact, they usually promise to have no litmus tests for their nominees, even though Roe is as much a litmus test of one’s commitment to the Constitution as one’s position on abortion. Consequently, their Supreme Court justices come down on both sides of Roe and many other constitutional questions. Even Ronald Reagan appointed two pro-Roe justices.
In a perfect world, presidents of both parties would appoint qualified judges who could be confirmed regardless of their views or judicial philosophy. But when an ACLU litigator is barely opposed by any Republicans and John Roberts is opposed by mainstream Democrats, one-party deference to the president isn’t an act of fidelity to some vital political custom. It is an act of unilateral political disarmament.
Worse, as Ramesh Ponnuru argues in a perceptive essay in the current National Review, we don’t live in a world where judges feel constrained in their roles by the Constitution or written law. Sotomayor’s much-quoted remark that the courts are where policy is made was a gaffe only in the sense of the word favored by Michael Kinsley: an accidentally admitted truth. The Supreme Court has become a national policymaking body on abortion, capital punishment, school choice, religious freedom, and a whole host of other issues.
Nor will it do to argue, as Charles Krauthammer did recently, that elections have consequences. Barack Obama will appoint judges who take positions on same-sex marriage, the war on terror, gun control, and other topics that he was himself afraid to take during the campaign. These judges will long outlast the Obama administration. They will be able to shape policy for life, long after any buyer’s remorse on the part of the American electorate has set in concerning their 2008 presidential choice.
The fact that Sonia Sotomayor’s record and judicial philosophy — as opposed to her widely criticized “wise Latina judge” speech — are within the mainstream of Democratic judicial appointees doesn’t change anything. Deference by Republicans coupled with activism by Democrats is also having the effect of pushing the legal mainstream to the left, with Sotomayor included but Robert Bork and in some minds Sam Alito excluded.
As the Sotomayor hearings approach, Republicans need to continue do what they first did when protesting George W. Bush’s aborted nomination of Harriet Miers: take the judiciary as seriously as the Democrats do. The days of Antonin Scalia winning confirmation with overwhelming Democratic support are over. So are the days of strong checks against federal judicial power. Until they return, the days of Republican deference to Democratic judicial nominees should be over too.