Conservatives: Oppose Sotomayor at Your Own Risk?


By: Warner Todd Huston

A few of our newly minted spokesmen for all those seemingly ubiquitous new Republican moderates out there are starting to say that if we oppose Sotomayor, we do so at our own risk. By this they mean that if we are seen to oppose a strong Hispanic woman we will be hurting our chances further with Hispanic voters. To this one can only say poppycock. Sotomayor should be opposed and vigorously but not because of anything other than her rather un-judicial judicial philosophy.

No one, not one conservative commentator or politician, cares a whit that Sotomayor is Hispanic. There simply is no expectation of opposing her because she is of Latino heritage. And so, because of this, there should be no reason whatever to shy from criticizing her qualifications and philosophy. Further, to allow moderates on our side or anyone on the left to equate our opposition to a racial objection is illegitimate and should be vociferously denied.

Ms. Sotomayor does not believe in the rule of law, she does not believe in precedent — except for creating new ones based on her political/racial as opposed to judicial ideals — and she has no interest in judicial restraint. She is not a jurist but an activist for the most liberal of causes. She will make for an unreasonable Supreme Court Justice and will surely churn out one illogical, constitutionally unsupportable decision after another. She should be opposed on these principles.

But the crux of the pro-Sotomayor argument is two fold. One part holds that if we oppose this Latino woman we will be made out as haters of Hispanics and will lose Hispanic voters and the second is that opposition of Obama’s pick will be no different than our constant complaints of Democrat opposition to Reagan’s, George H.W. and W. Bush’s picks. Both are specious arguments.

First of all, we should stop pretending that being nice to every Hispanic candidate for anything regardless of that candidate’s ideology will “get” us anything. George W. Bush went out of his way to pick Hispanic candidates for all sorts of government positions. He has Hispanic family members and is well known for his soft stance on immigration reform. No Republican can stake a claim to being more Hispanic friendly. What did it get him? Not a single thing. Over his 8 years the Republican Hispanic vote has steadily eroded.

So, any obviation of conservative principle to pander for the Hispanic vote is a fool’s errand. It isn’t worth the erosion of our principles to try and cajole votes from the Hispanic community. This is absolutely not to say that we should abandon any efforts to recruit good Hispanic candidates that exhibit strong conservative principles, far from it. But, as in this case, meekly accepting a candidate like Sotomayor will do no good to help us gain the vaunted Hispanic vote.

Secondly, crying over the spilled milk of the days when a president could expect little opposition to his Supreme Court picks is a waste of time. Since Reagan, the left has seen to it that this long-time practice is dead as the Dodo. Bemoaning the partisan tone of Supreme Court picks truly is futile. Furthermore, since we’ve allowed the SCOTUS to become so overly powerful, it is foolish to want to return to the days of presidential deference for Court picks anyway.

If the goal is to return to an era when SCOTUS picks sail through the Senate without rancorous partisan fights, then we will first have to denude the Supreme Court of the undue power it has accumulated. That would require that Congress retake its role as Constitutional authority. Instead of making law to which it hasn’t thoroughly applied the litmus test of the law of the land and then assuming that the Courts will iron out the constitutionality of same, Congress has to again begin to consider the legal basis of its attempts at legislation.

Until such time as Congress again begins to think in terms of the constitutional legitimacy of its own actions, however, we must all realize that the battle for the rule of law will be in the arena of the Courts. That being true we must fight for judicial restraint and constructionist principles in judicial candidates.

Sotomayor is well known for having said that she sees her job as that of rule maker instead of law reader. She has said that she feels her status as a Latino woman makes her better qualified than a white man to be a judge and she has issued many a ruling based on her theories of social “justice” as opposed to an adjudication on the law as written. This woman is an activist that has never shied from using the bench to advance her political goals nor has she been squeamish about saying so. (For some of the issues against her qualifications, see this piece)

This is why we oppose her and we should not allow her candidacy to quietly glide by unopposed. That Sotomayor is of Hispanic heritage is a meaningless distraction and we must reiterate this fact in every posting about her.

One of the best single paragraph explications in this early debate against Sotomayor was penned NRO’s Rich Lowery:

Sotomayor’s nomination represents an extraordinary personal accomplishment and an important symbolic affirmation for Latinos. Her confirmation, though, would be another step toward eviscerating the constitutional function of the Supreme Court, as empathy trumps impartiality.

Just so, Mr. Lowery, just so. Think of this as a model of how to argue against this horrid SCOTUS nomination.

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