Sotomayor Fight is Conservative Victory
“Although the numbers in the Senate ensured that the confirmation of Sonia Sotomayor was never in doubt, those of us committed to restoring the rule of law to the federal judiciary have many things to be happy about in how Sotomayor’s confirmation battle played out. Those include Republican senators’ courage in mounting a strong opposition; the repudiation of the living Constitution philosophy that has been so fashionable in recent decades; the multi-edged defeat of identity politics; the strong signals sent to the White House about future Supreme Court picks; and the profound change in the politics of judicial confirmations wrought by the explosion of the Second Amendment issue.
“The engagement of the Second Amendment community will long be remembered as the most significant aspect of this confirmation battle. Although the NRA’s decision to oppose Judge Sotomayor and score her confirmation vote got the most attention, the grassroots mobilization of gun owners from the bottom up is probably the biggest story. As a result, gun rights emerged as the most influential issue in this and probably future Supreme Court confirmation battles.
“By adding a large and influential constituency to the coalition opposing the nomination of judicial activists, the Second Amendment issue has forever changed the political dynamics of the judicial confirmation process. It is no coincidence that most of the GOP senators from states with both large Hispanic and gun-owning populations decided to vote against Sotomayor, or that the 30-plus Republican votes against confirmation far exceeded the expectations of liberals and conservatives alike. By all reports, the White House was very surprised at how big the gun issue turned out to be, and it is unlikely that a President will ever again choose a Supreme Court nominee with a record that can be characterized as hostile to the Second Amendment.
“One need only recall the mere three GOP votes against the elevation of Ruth Bader Ginsburg to the Supreme Court to know that the Republican leadership – Sens. McConnell, Kyl, Thune, Cornyn, and on the Judiciary Committee, Sen. Sessions – and most of the party’s other senators deserve tremendous credit for refusing to be cowed by the ‘you better vote for the first Hispanic Supreme Court nominee’ attitude of the White House and Senate Democrats.
“Republican senators should be proud not only of their votes today, but also of the tough but fair questions they asked Sotomayor during her hearings and of the powerful floor statements they made in opposing her. As a result, Americans got the teaching moment they deserved. For the first time since the nomination of Robert Bork in 1987, the confirmation battle saw a serious debate about judicial philosophy and the proper role of judges, rather than just an argument about case outcomes.
“It could have been an even grander debate if Judge Sotomayor and her White House handlers had not chosen to run away from, rather than defend, the philosophy of empathy and ethnicity-based judging espoused by the President and by his nominee in her many speeches. Perhaps the most memorable moment of Sotomayor’s confirmation hearings was her explicit and complete repudiation of President’s Obama’s call for judges who rule from the heart in the most difficult cases.
“I share the frustration of liberal legal commentators over Sotomayor’s refusal to stand and fight for the concept of a living Constitution, but there’s a huge silver lining: the living Constitution is now dead as a defensible judicial philosophy outside academia. There is no doubt that judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during his or her confirmation hearings.
“Finally, it has been a bad summer for the purveyors of identity politics. Not only was the President forced to beat a hasty retreat from his old-school, victim-based take on last month’s incident in Cambridge, but his Supreme Court nominee denied any knowledge of the race-base theories of judging she and other liberals have long championed. Meanwhile, Democrats failed miserably in their attempt to convince Republican senators that they opposed a Hispanic nominee at their ‘own peril’ (quoting Sen. Schumer). Polls showing that Hispanics and non-Hispanic whites shared the same unimpressive levels of support for Sotomayor generally, as well as the same levels of specific concern about her Second Amendment record, dealt a further blow to identity politics. Those of us who believe that racial favoritism has no place in law or politics should celebrate.”