Saturday, May 30, 2009

Sotomayor need not be a GOP dilemma

By Don Klein

I look forward to the confirmation hearings of the Senate Judiciary Committee when they evaluate the qualifications of federal appeals Judge Sonia Sotomayor as a nominee to the Supreme Court. Rush Limbaugh and Newt Gingrich, among others, are trying to make it a showdown between strict constitutional constructionists and what they like to deride as activist justices, or even worse, liberal jurists.

What is significant is that neither Rush nor Newt are elected officials and those who are, like the Republicans members of the Senate committee, and eventually all Republican members of the Senate, have to go back eventually to the voters and ask to be reelected. None of them have spoken out against her in significant ways so far.

If they reject her, how will they explain their action to voters?

How will anyone be able to vote against Sotomayor for this important position and not be accused of gender prejudice? How will you explain to the millions of new Hispanic voters in the country – and that number keeps growing – that you tried to stop the first Latina ever to be nominated to the highest court in the land?

The backlash could be brutal and lasting. Minorities don’t easily forget personal slights.

The simple rule in politics is that it is best not to make enemies of large voting blocs, especially if they are, like Latino-Americans, the largest growing ethnic group in the nation. If the Republicans sink Obama’s selection of Sotomayor, the party could become a permanent minority party.

But that wouldn’t bother Limbaugh. He is a broadcaster who thrives on throwing bric-a-bracs at politicians and he has a much wider variety of targets when the Democrats are in power. We can dismiss Gingrich as a colossal hypocrite. While he was publicly reprimanding Bill Clinton for having an affair while president, Gingrich was canoodling with a young staff member in his office. Why anyone listens to him is beyond comprehension.

There are other reasons not to torpedo the Sotomayor appointment. If opponents pick out of context her words that can be twisted to sound like she has preferences of one sort or another, they can just look back at the treatment given Samuel Alito and John Roberts when they faced confirmation. The Democrats held their noses and voted for the nominees because they were the choices of the then president.

That is what politics is all about. That is why many people worked so hard for Obama’s success in 2008. They felt certain a Supreme Court nomination would occur in the coming presidential term and they wanted a progressive member of the court, not another Antonin Scalia. Choosing judges to serve on the federal bench is the responsibility of the president and virtually every nominee who did not withdraw on their own, has been approved.

My gosh, even Clarence Thomas, the numskull of the Supreme Court with all his negatives known ahead of time, was approved by the Senate, to its eternal ignominy.

If Republican conservative activist justices like Roberts, Alito and Scalia can make the grade, so can one outspokenly progressive justice like Sotomayor. The courts need balance to keep it from shaming the country again as it did in its ruling on the 2000 national election dispute.

At this time I don’t know enough about Sotomayor to make a sensible assessment on her nomination. I know little about her. She has not testified on Capitol Hill and that is the important part of the procedure. We should all listen carefully to what she says and make a determination afterwards. There are questions I would love to ask her if I could.

1. Being a Catholic, does she feel abortion is infanticide and should be banned?

2. On the subject of religion, she would become the sixth Catholic justice on the current court. Given that fact, would her official decisions be based on religious beliefs or will she evaluate issues without consideration of church doctrine?

3. I would like her to explain her position on affirmative action, especially how it influenced her decision in the infamous New Haven firefighters case.

Why conservatives are so worked about her is strange indeed. Her ascent to the court will not alter the current balance. She will be replacing Associate Justice David Souter, another progressive. As far as court decisions are concerned there will be little difference from now so why should Republicans be lathered up over her? It’s the next appointment, if replacing a conservative, that will really count.

In the end, it is no great revelation that Sotomayor is a liberal. Almost anyone who was brought up in the Bronx, especially the South Bronx, would lean towards liberal politics. It is almost the same for someone like Chief Justice John G. Roberts, who grew up in Long Beach, Indiana, being a conservative.

So if she is rejected on those grounds, an unlikely possibility to be sure, the president will simply appoint another liberal candidate. There will be no Thomases, Alitos or Scalias from this president. So my advice to her Senate opponents is to brace yourself, suck in your chest, and vote "Yeah" when your name is called because you cannot stop the steam roller of progress set in motion last election when conservatives were soundly rejected by voters and are currently leaderless in the Senate.

And there are benefits to doing so. You will not anger the largest growing voter bloc in the nation, you will show the world that Rush and Newt do not run your party and you will start on the road to recovering the dignity and class Republicans once had, but threw away when they embraced the Bush-Cheney regime.


irwinb said...

The notion of public confirmation hearing for Supreme Court Justice is a relatively new phenomenon, dating back to the confirmation hearing of Thurgood Marshall, where it was used in an attempt to rally support to block his confirmation. Given the last two confirmation hearings, it may be better for everyone if they went back to a non media circus hearing, (perhaps covered only be C-Span)

I predict that Judge Sotomayor's hearing will prove to be pretty routine, and will attract the attention of the talking heads (from both the Left and the Right)on radio and TV. Just as in the Roberts and Alito hearings, the majority of the time will be spent by Senators taking 5 minutes to ask a rhetorical question, and one minute for response. Trust me she will not be "Borked", and nothing substantive will be elicited.

I'm afraid that only one of your questions (#3) has any chance of being asked and responded to. As to #1, it will not see the light of day, except in terms of a discussion about the right of privacy, and the doctrine of Stare Decisis.
As to your question #2, I thought that question was settled by JFK in Houston in 1960. I am surprised that you feel that this is still a proper field of inquiry, and if so why only of Catholics.The question is inappropriate- shame on you.
Question 3 will be asked and answered, but perhaps not to your satisfaction, or your views on the matter.

Judge Sotomayor should and will be confirmed on the basis of her achievements, intellect, and judicial experience. She will surprise as many people as did Justice Souter during her term on the Court. The only thing she has in common with Justice Thomas is that it seems they both have empathy.

Citizen Klein said...

Irwin, I think your last paragraph is unclear on two points. The surprise associated with Justice Souter is that he was expected to be a conservative and turned out to be progressive. In other words, he was not what he was expected to be. By sayimg Sotomayor will surprise people as he did is saying she will end up being someone not expected. That is frigthening in that she is expected to be a liberal on the court and it would be shocking if she turned out to be conservative.
Secondly, did I understand you to say Justice Thomas has empathy? That would be worst mistake your ever said if you really meant it that way.