How Republicans will know whether to filibuster Sotomayor

Much of the drama surrounding the filling of the Supreme Court vacancy created by Justice Souter’s resignation played out last week when President Obama nominated Judge Sonia Sotomayor. With the Democrats firmly in control of the Senate, it is easy to conclude that the confirmation process will be anti-climactic.

 

However, Senate Republicans still must decide how to deal with this nomination. And if they do more than merely go through the motions, we could see, if not drama, then at least fireworks. And, most importantly, some teaching moments.

 

The principles that should guide Republicans seem clear: They should apply the same approach to the Sotomayor nomination that the Democrats applied to the nominations of John Roberts and Samuel Alito. This means, first, that they should question the nominee searchingly, albeit with far greater civility than the Democrats accorded Roberts and Alito. 

 

It also means that Republican Senators should feel free to vote against Judge Sotomayor if they conclude they are likely to disagree with most of her decisions in controversial cases. It was on this basis alone that half of the Democratic Senators voted against Roberts, and 40 of 44 later voted against Alito.

 

At that time, Republicans objected mightily to the “politicization” of the confirmation process. They argued that the president deserves considerable deference when it comes to judicial nominees – the deference Republicans showed President Clinton when they voted overwhelmingly for his two liberal Supreme Court nominees, Justices Stephen Breyer and Ruth Ginsburg.

 

These were, and remain, excellent arguments. But it will not do to have one set of rules for confirming the nominees of Democratic presidents and another set for confirming Republican nominees. Thus, Republicans should grant no more deference to Obama’s selections than the Democrats did for Bush’s, but also no less. 

 

That last caveat kicks in on the question of a filibuster. The prevailing view holds that filibusters should be employed to block a judicial nominee only under “extraordinary circumstances.” This standard, if it can be called that, should apply to Sotomayor; Republicans should not attempt to further undermine the president’s prerogative to select judges.

 

How might these principles play out in the coming months? At the questioning phase, there will be no shortage of topics. Judge Sotomayor has said that a “court of appeals is where policy is made.” Republican senators might ask her why unelected appellate judges should make policy.

 

Judge Sotomayor has also said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who has not lived that life.” Republican senators might ask Sotomayor how her self-conscious exaltation of the experiences of one ethnic group over those of another can be reconciled with the even-handed administration of justice. 

 

I expect that Sotomayor will walk away from these statements. If so, we will have teaching moments. If not, we will have fireworks and, by virtue of the ensuing debate, teaching moments.

 

At voting time, Republican senators should have ample grounds for opposing Judge Sotomayor under the standard used by Democrats for Roberts and Alito. Sotomayor’s judicial opinions almost uniformly are those of an activist liberal judge. 

 

For example, in the New Haven firefighters case, Sotomayor ruled against a group of white and Latino firefighters who were denied promotion, despite having received top scores on the promotion test, because no African-American had scored high enough to receive a promotion. Apparently, her “empathy,” touted by President Obama as a qualification for the Supreme Court, did not extend to “politically incorrect” victims of discrimination.

 

Judge Sotomayor’s rulings also reflect a strong anti-business bias. Michael Greve of the American Enterprise Institute calls Sotomayor “among the most aggressively pro-plaintiff, anti-business appellate judges in the country.” He also accuses her of “contempt for property rights.”    

 

But a judge’s liberal activism does not constitute an “extraordinary circumstance” that would justify attempting a filibuster. Elections have consequences and one of the consequences of last year’s election is that Obama’s judicial nominees should not be denied an up-or-down vote merely because they share his liberalism.

 

The only possible extraordinary circumstance on the horizon is Sotomayor’s claim that, other things being equal, Latina judges can decide cases better than their white male counterparts. The notion that a judge’s decisions should depend on his or her gender or race is extraordinary, and highly offensive. It certainly is not a view that Obama advocated when he faced the electorate.

 

I expect, therefore, that Sotomayor will back away from the “wise Latina” standard of judging. If she does not, a filibuster will be justified.      

 

Thus far, my analysis has not accounted for Sotomayor’s ethnic status and the potential political consequences it presents for Republicans. How should these considerations change the calculus, if at all?

 

Political considerations should not affect the way Republicans question Sotomayor. Even in our politically correct society, there is no political price associated with asking tough questions of a minority candidate for the Supreme Court. And if there were, it would be a price that comes with the title United States Senator.

 

In theory, the same analysis should apply at voting time. However, there is little point in asking senators to jeopardize their political futures to block a Supreme Court nominee whose confirmation is all but certain. The up-or-down vote will be a call for individual senators to make later on, after they have fully assessed Sotomayor and the political situation back home. 

 

Under ordinary circumstances, a filibuster of Sotomayor might have adverse political consequences not just for an individual senator, but for the Republican party. However, a filibuster under ordinary circumstances would be unjustified in any event. 

 

If Judge Sotomayor does not disavow her claim that judicial decisions depend not on the Constitution and the laws, but on the race or gender of the judge who renders them, then Republicans may have the extraordinary circumstance that justifies a filibuster and makes one politically viable.

 

Sunday Reflection contributor Paul Mirengoff is a lawyer in Washington, D.C., and a principal author of Powerlineblog.com.