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May 26, 2009

How Hard Should Republicans And Conservatives Fight Sotomayor?

Pretty damn hard in my opinion.

It’s a given that the left will try and package this pick as non-confrontational and historic. In fact, that process has already begun.

But Obama has chosen a mainstream progressive, rather than a wild-eyed liberal. And he has chosen a rags-to-riches Hispanic woman. Her life story is inspirational — a political consultant's dream. Since she is certain to be confirmed, there are plenty of smart conservatives who will, by midday Tuesday, have done the political cost-benefit analysis: at a time when Republicans are trying to demonstrate that their party can reach beyond rich white men, what mileage is there in doing anything but celebrating such a historic choice?

The White House plans to take the high road in selling Sotomayor to the public. They will point to her résumé, her previous Senate confirmation and her impeccable credentials to make a case for her. Obama's aides are so confident in the political pluses of this pick that some of them would welcome attempts by fringe conservatives to come after her. A few would even like liberals to attack her as insufficiently committed to their causes.

No doubt some squishy Republicans will claim we will alienate Hispanics if we oppose her. Funny but that wasn’t so much a concern to Democrats when they savaged Miguel Estrada and kept him off the Court of Appeals and foreclose any chance he had to be named to the Supreme Court.

The Democrats, including then Senator Barack Obama, have made it perfectly clear over the years that good character, outstanding educational credentials and relevant experience are not enough.

As we all know, there's been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

Obama voted against Alito.

Baring something unforeseen in her background (and let’s not forget, the Obama vetting team isn’t exactly batting a thousand), Sotomayor is going to be confirmed.

As Gabe has begun to lay out below, Sotomayor is clearly a hard left activist judge who thinks minority judges have special knowledge and empathy based on nothing more than their own experiences and heritage. She and Obama clearly think those are more relevant than an impartial application of the law.

But what the Republicans and conservatives must do is use this opportunity to layout what they believe in when it comes to the proper role of judges in our system. They should put Senators from nominally ‘red states’ like Ben Nelson, Byron Dorgan and Blanche Lincoln into the uncomfortable position of defending and pushing this very liberal activist judge over the top.

There's also the benefit of laying down a marker. If Sotomayor gets through without a fight the perception will be that this type of 'progressive' judging is mainstream and acceptable. Obviously liberals think it is but this is a fairly bright line distinction between the parties. People always say Republicans and Democrats are the same, there's no difference between the two. Well judicial philosophy and role of the courts clearly is one big difference and an important one. We should not shy away from making that case, even if we are doomed to fail in the Senate.

Also, Democrats must know the days of them opposing Republican nominees while Republicans support the likes of Ginsburg, Breyer and now Sotomayor are over. The Democrats have been playing tackle football since the Bork nomination while the Republicans have been playing flag football. No more and the game changes now.

It will be good to stop fighting each other and get back to fighting the left.

More: Gabe sends this along...only 7 Republicans voted for Sotomayor when she was confirmed to the Second Circuit.

Sens. Robert Bennett (R-Utah), Thad Cochran (R-Miss.), Susan Collins (R-Maine), Orrin Hatch (R-Utah), Judd Gregg (R-N.H.), Richard Lugar (R-Ind.) and Olympia Snowe (R-Maine) joined a unanimous slate of Dems in pushing Sotomayor through by a vote of 68-28.

Among the 29 Republican nays were current Minority Leader Mitch McConnell (R-Kent.), Minority Whip John Kyl (R-Ariz.), ranking Judiciary Committee member Jeff Sessions (R-Ala.) and John McCain (R-Ariz.).

If you couldn't get John McCain....

Added [Gabe]: Senate Dems are at 59 votes, so they only need one squish to switch. Who's going to jump fastest, Collins or Snowe? Or maybe they'll have a joint press conference.

DrewM. Again: Gabe adds a good note about the filibuster. Personally, I don't think Republicans should go that far. Republicans spent a lot of time making the case that filibusters shouldn't be used against Supreme Court nominees. I think they were right, a nominee should get an up or down vote. I think Republicans should play hard ball but such naked intellectual dishonesty is best left to the Democrats.

Early Republican reaction. Not a good sign. They should have been ready to go from the start. Kennedy didn't wait before launching his "In Robert Bork's America..." shit. I'm not saying that Republicans should slander Sotomayor like Kennedy did Bork but being ready from the first moment is important. Being statesman like is admirable at times, this is not one of those times. Being honest, fair and tough is what we need now, not in a few weeks.


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posted by DrewM. at 10:07 AM

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