July 17, 2009

Did Judicial Liberalism Surrender?

Many echoed the view that Sotomayor either had a confirmation conversion or she outright lied to the committee.  She repudiated everything from her "wise Latina" speech to Obama's "empathy" standard.  Instead, Patrick McIlheran declares this the week that judicial liberalism gave up.

Why such a thorough repudiation of all that progressives feel? Why must Sotomayor be portrayed as identical to a George W. Bush appointee before Democrats can vote for her?

Because, apparently, that's what Democrats suspect the public wants. On some level, the president and his congressional allies believe the public would not stand for a justice who thinks the Constitution must breathe modern air, that world opinion must inform our law, that abortion is a constitutional right if not a sacrament and that who you are should matter to how the law treats you. ... 

Either way, what's become clear is that the week that was supposed to be the humiliating rout of old white guys in the Senate has turned into the surrender of judicial liberalism. That has become the philosophy no potential justice can admit to, even when her president owns the Senate. Whoever in the administration coached Sotomayor knows this: A conservative Supreme Court is not at odds with America. It is its reflection

What is interesting is how little liberals actually know about conservative judicial philosophy and how they come off as a result.  This is embodied by Sen. Shumer's opening remarks.

In his introductory comments at Monday's hearing on prospective Supreme Court justice Sonia Sotamayor, Sen. Chuck Schumer (D-NY) boasted that over the course of her career, the nominee "ruled for the government in 83% of immigration cases, in 92% of criminal cases." This apparently is a plus. ...

Mother Jones correspondent Stephanie Mencimer's summary of the hearings thus far is a bit over the top, but not by much:

Republicans would accuse Sotomayor of being a soft-hearted minority, and she would parry with examples from her 17-year judicial career where she'd been as mean or meaner than any white guy on the bench.

This shows that all Schumer and the Democrats know is a results oriented judicial philosophy.  There is no thought to principles of interpretation or a limited role for the judiciary, just results.

Sotomayor is likely to be confirmed and just as liberal as the right feared and the left hoped.  What is sad is the American people didn't get to hear the true Sotomayor make her case.  Judicial liberalism may have surrendered in the confirmation hearing, but it will undoubtedly still hold four votes on the Court.

Update:  Byron York suggests that the Republicans let it surrender all too easily.

For Republicans, the confirmation hearings for Supreme Court nominee Sonia Sotomayor were a missed opportunity. Not an opportunity to defeat her — with 60 Senate Democrats determined to confirm President Barack Obama’s first Supreme Court choice, Sotomayor will undoubtedly prevail. But Republicans had a chance to delve deeply into Sotomayor’s record, to reveal the worldview and background of the next Supreme Court justice, and they didn’t take advantage of it. ...

Sometimes, she descended into non sequitur. On her final day of testimony, Graham asked, “Do you believe that your speeches, properly read, embrace identity politics?”

“I don’t describe it as identity politics,” Sotomayor responded, “because it’s not that I’m advocating the groups do something illegal.”

What in the world did that mean? Graham didn’t follow up.

Nor did Republicans follow up on dozens of other questionable statements. And that was the GOP’s failing. To uncover the real Sotomayor, the activist as well as the judge, required asking short, persistent, fact-based questions. Instead, several Republican senators speechified, lingered on the “wise Latina” issue, and failed to explore in depth her work at PRLDEF. They let her evasions stand.

And in the end, they gave up. As elected officials, the GOP senators didn’t see the value in a scorched-earth fight they were going to lose anyway. And now Sonia Sotomayor — whoever she is — heads to the Supreme Court.

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