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Monday, Jun 8, 2009 10:05 AM UTC

Dear Wingnut, what REALLY bothers you about Sotomayor?

Our undercover conservative explains the right's real reasons for opposing Obama's Supreme Court nominee.

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Topics: Sonia Sotomayor, Supreme Court

Dear Wingnut, what REALLY bothers you about Sotomayor?

Dear Wingnut,

Why are you guys REALLY against Sonia Sotomayor? It can’t be for the reasons you claim. Is it simply because Obama nominated her? Is it because that’s what opposition parties do? Is it just to get the base stirred up? On a practical level, I don’t understand this decision. Republicans need nonwhite voters to win again. Sotomayor would be the first Latino justice on the Supreme Court. Aren’t you worried about committing demographic suicide? What’s the secret?

Thanks for your answer,

Peggy

Hello again. It’s good to be back with you.

The strong language — and, one can assume, the level of anger that language represents — used in the replies to last week’s column about Ronald Reagan was, to put it mildly, surprising. I would have thought the passage of time might have taken the edge off a bit. I guess not.

This week Peggy wants to know why conservatives are “REALLY” opposed to the confirmation of 2nd Circuit Court of Appeals Judge Sonia Sotomayor to the U.S. Supreme Court. This assumes, of course, that the stated concerns many have voiced are somehow disingenuous, that they are not reflective of what they are really thinking, and that there is a hidden agenda at work.

There isn’t. Judge Sotomayor has demonstrated that she is a liberal, activist judge and, as such, conservatives are reflexively opposed to her appointment — just as liberals automatically come out against the nomination of a strict constructionist anytime a vacancy occurs on the Supreme Court.

There are voices on the right who have strongly criticized Sotomayor before all the evidence is in. But to their credit, the Republicans in the U.S. Senate — and their “votes” are really the only ones that count — have been remarkably measured in their response.

After she was nominated, Senate Republican leader Mitch McConnell of Kentucky said, “Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.” To this point, I think it is fair to say that Republican senators have kept their word.

It is true, however, that a number of conservative groups have come out strongly in opposition to her confirmation. Part of that is, as I said earlier, reflexive. But, and I think it fair to say that the examination of her record is still in the early stages, there are real issues of concern regarding her temperament and her attitude toward her job.

There is, for example, her now widely discussed statement in a 2002 Berkeley La Raza Law Review that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life.”

Conservatives reading that come away with a real concern that her attitudes about equal justice may depend, or at least be shaped by, the race and gender of the parties involved in the cases before her. As conservative commentator Leslie Sanchez said recently on CNN, “The Constitution doesn’t guarantee equal for some or equal justice for the disadvantaged; it guarantees equal justice for all.”

So it is more than fair to ask what her understanding is of the job of a Supreme Court justice. Is it to interpret the Constitution in a way that is constrained by what it actually says and by precedent? Or is it to evaluate each case alone, on its own merits but in a interpretive way, one that is shaped by her personal feelings, her background and her politics more than by the language of the nation’s highest laws and a desire to achieve outcomes that are “fair” rather than constitutional? One would hope they would always be both, but fairness is a subjective standard. Constitutionality is not, or at least shouldn’t be.

There are plenty of individual cases and opinions that cause conservatives to question how she will rule as a high court justice and, therefore, to oppose her nomination.

There is Ricci v. DeStefano, a racial discrimination case in which she joined a 2nd Circuit opinion supporting the decision by the city of New Haven, Conn., to throw out the results of promotion exam for firefighters because the only applicants who qualified for promotion were white or Hispanic. The current Supreme Court is considering Ricci v. DeStefano.

And there is the case of Maloney v. Cuomo, in which she was part of a three-judge panel that ruled the Second Amendment affects only federal law, not state or local law. This is an issue that is almost certain to come before the high court in the next year or so, coming on the heels of D.C. v. Heller, in which the court held the right to bear arms is an individual right. The court’s decision threw the whole idea of restrictive-gun bans, from the standpoint of constitutionality, into question.

It is the concern about cases such as these, how she ruled and why, that are driving the conservative opposition to her nomination. Conservatives are not in opposition because she is Hispanic. Remember: The Republicans in the Senate and conservatives across the country went to war, in the political sense, after Senate Democrats used the filibuster for the first time to keep President George W. Bush’s 2001 nomination of Miguel Estrada — who received a unanimous “well-qualified” rating from the American Bar Association — to the U.S. Court of Appeals for the District of Columbia Circuit from coming to the floor for a vote.

When you look at the record, it was President Obama and the White House that made Sotomayor’s nomination about her race and sex. It was the White House that couched her nomination in terms of her life story and trumpeted the fact that she was the first Hispanic nominee over her legal and judicial qualifications. As the Democrats paid little price in the Hispanic community for blocking Estrada, it is highly unlikely that Republicans will lose support in the Hispanic community for voting against Sotomayor.

In the end, it is highly likely that Sotomayor will be confirmed and, as she is easily as liberal as the justice whom she will replace, David Souter, there are some who confess a degree of puzzlement over the desire to fight her nomination when it won’t change the balance on the court. But her opponents argue that it is important to set down markers, in order to be better prepared for the moment Obama nominates a judge who would be a game changer.

I hope that helps.

Glenallen Walken is the pseudonym of a longtime conservative political operative who was an official in the George W. Bush administration. More Glenallen Walken.

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