Campaigning for president, Barack Obama promised he would appoint judges who decide the “hard” cases based on personal empathy and political leanings. This formulation led him to be one of only 22 members of the Senate in 2005 to vote against the nomination of John Roberts to be chief justice, a vote that put him to the left of the likes of Pat Leahy and Russ Feingold. True to that Obama mold, Judge Sonia Sotomayor is a judicial activist, and senators who care about the U.S. Constitution should oppose her nomination.
So far, 30 Republican senators have announced that they will vote against Sotomayor’s confirmation. The last time a Supreme Court nominee selected by a Democratic president received more votes against confirmation was 1894.
Those 30 Senators deserve an enormous amount of credit for standing up to Sotomayor’s boosters in the Senate and the some liberal commentators in the media who have perpetuated the falsehood that a vote against Sotomayor is somehow a vote against Hispanics. Nothing could be further from the truth.
Republican Senators have consistently praised Sotomayor’s background and personal story, which we all admire. The message they are sending concerning their votes is clear: Sotomayor’s record of speeches, law review articles, and judicial decisions demonstrates that she will not set aside her personal feelings and politics to decide cases based on the written Constitution.
It takes a lot of chutzpah for some in the media, like Thomas B. Edsall of the Huffington Post, to suggest that Republicans are risking alienating Hispanic voters by opposing Sotomayor’s nomination. It was, after all, the Republicans who sought to elevate Miguel Estrada, a Honduran immigrant who rose from poverty to editor of the Harvard Law Review, to sit on the D.C. Circuit Court of Appeals. Democrats on the Judiciary Committee delayed and ultimately obstructed Estrada’s nomination with partisan political attacks and ultimately the threat of a filibuster. They waged a smear campaign against Estrada that still ranks as one of the low moments in the modern history of the Senate. Republicans in the Senate fought like champions to save his nomination. The GOP’s record of fighting for Hispanics to sit on our nation’s highest courts is clear.
Another lie being spread by Sotomayor’s boosters and their friends in the media is that a vote against Sotomayor will result in a “backlash” at the polls. This cliché exists only in a fact-free zone populated by arm-chair pundits, and the opinion research data roundly refutes it.
According to a Zogby poll released last week, the American people are evenly divided on Sotomayor’s nomination. (49 percent support her confirmation and 49 percent oppose it.) She even fails to garner the support of a majority of Hispanics, who are divided, 47 percent for and 43 percent against, well within the poll’s margin of error. In fact, a recent Gallup poll found that President Barack Obama’s support among Hispanics dropped 7 percent after the week of Sotomayor’s confirmation hearings, suggesting any attempt to rally Hispanics with her nomination failed.
Her nomination has, however, galvanized gun owners (opposed 67 percent to 30 percent), Independents (opposed 55 percent to 44 percent) and small business owners (opposed 52 percent to 42 percent). There has been a startling implosion of Sotomayor’s support among both core conservative voters and the swing voters who will decide the 2010 and 2012 elections.
This kind of opposition to a Supreme Court nominee is worth noting.
According to Gallup, “[w]ith only 9 percent of Americans expressing no opinion about Sotomayor’s fate, the lowest seen for any nominee, she now garners more opposition than any Supreme Court nominee of the past two decades, except for the unsuccessful Harriet Miers.”
The 30 Senators who have decided to vote against Sotomayor’s confirmation are on solid ground. The Republican Senators and red-state Democrats who have decided to support her, in contrast, should be very concerned what price they may pay.
The three Republican Senators who have yet to announce their intentions — Judd Gregg (N.H.), Lisa Murkowski (Alaska), and George Voinovich (Ohio) — are in a delicate situation, because their vote for Sotomayor could engender alienation from the GOP brand among core-and-swing voters at the very moment when Obama’s political fortunes are waning due to a weak economy and healthcare reform.
Specifically, if the remaining undecided Republican Senators decide to vote for Sotomayor, they could do real and lasting damage to the Republican Party writ large in the following ways:Ensures the next nominee will be even worse. There has never been a Supreme Court nominee who has rejected the rule of law as brazenly as Sotomayor, who said in her writings that race and gender can and should affect the facts that judges choose to see in deciding cases. If Republicans cannot stand against a judicial activist with such out-of-the-mainstream views, and who was reversed by the Supreme Court in a major decision on quotas issued while her nomination was pending (the New Haven, Conn., firefighter care), then Obama will have more incentive to nominate someone as bad, or even worse, the next time.Gives future nominees license to evade and obfuscate. To be charitable, in her confirmation hearings Sotomayor engaged in a fair amount of doublespeak, with countless confirmation conversions of convenience. If Sotomayor is confirmed with significant bipartisan support, future nominees will learn the lesson that they can flip-flop on damaging views and statements without fear of contradiction. This will breed cynicism, undermine the integrity of the confirmation process, and deflate enthusiasm among core supporters going into the critical 2010 elections.Discourages the GOP base. The grassroots have spoken. The NRA, National Right to Life Committee, Americans United for Life, Americans for Tax Reform, the small business community, and other critical elements of the GOP grassroots all oppose this nominee. These groups are speaking for grassroots conservatives, who oppose Sotomayor by a whopping 62 percent to 16 percent margin (Rasmussen, July 16-17).Energizes the White House with a big win. If the president is perceived as winning big on Sotomayor because of a weak and divided GOP caucus, it gives him crucial momentum for the government-run healthcare, cap-and-tax, and other liberal legislative priorities.
In sum, Sotomayor’s personal story is inspiring. Republican leaders should emphatically and frequently express admiration for her background and achievements as a Latina woman. But her views are out of the mainstream and her judicial record and previous statements and writings are those of a judicial activist. Not only does the GOP base and Independents oppose her because of those views, but Hispanic support for her nomination is underwhelming at best.
A vote against her confirmation is not a vote against her personally. It is a vote against the imposition of quotas by judicial fiat, the reliance on foreign law by U.S. courts, more liberal protections for unlimited, taxpayer-funded abortion on demand, and the erosion of the Second Amendment right to bear arms.
For Republicans, the Sotomayor nomination is a political Rorschach test. If they fail it, the consequences in 2010 and beyond could be enormous. If they pass it, combined with Obama’s falling poll numbers, growing queasiness among Blue Dog Democrats, and a weak economy, their fortunes could turn around far quicker than they think.
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