The Law Turned Upside Down

Barack Obama has succeeded in getting his very first Supreme Court nominee confirmed. The democratic process has worked once again, but that doesn't mean it worked well. The first proud advocate of special racial, ethnic and gender preferences will now sit on the highest court in the land. The world won't end, and the Constitution won't disappear, but another landmark of judicial appointments has been set.

By a vote of 68 to 31, Sonia Sotomayor was confirmed to replace Associate Justice David Souter, who retired at the end of the term in July. The "liberal-conservative" balance on the court will not change in any appreciable way. However, another slice has been taken out of the national motto E Pluribus Unum (out of many, one). If I knew how to phrase it in Latin, I would say the new motto is "one group against many groups." Sotomayor is not the first woman on the court. But she is the first Hispanic, which also makes her the first female Hispanic on the court. The Obama administration is absolutely obsessed with "firsts."

Many of us who fought the civil rights battles of the 60s were pleased that a black man could finally be elected President. And we are pleased that an Hispanic will finally sit on the high bench. It does not follow that all of us are thrilled speechless by this black President, or this Hispanic Justice. When the results of the Presidential election were pretty much final, wild demonstrations (some would call them low-level riots) broke out in most of our major cities. The common shout was "we won." Normally that "we" would mean "we Democrats," or "we Republicans," or even "we Americans." But the tone was clear. A large portion of the crowds carrying on in the streets were not old enough to vote, and most weren't even registered. It was abundantly clear who "we" was. Yet even some racial pride in the moment is not necessarily a bad thing, so long as it isn't the only thing.

The Supreme Court is not nearly as exciting a post as the Presidency, but it can have much longer-term effects since Presidents are transitory and Supreme Court Justices are for life. So the celebrations were not nearly as tumultuous as those following the Obama election. More importantly, the celebrations of Hispanics has no particularly ominous meaning. Why shouldn't they be happy? Most Hispanics (like most other Americans) really have very little understanding of the law, the Constitution, and how a Supreme Court decision is reached and implemented. They simply know it's an important post, and for the first time an Hispanic has joined the Brethren. Celebration seems perfectly appropriate.

The shame is in the way the press, the Democrats and the TV talking heads have handled the matter. Never mind her atrocious misstatements of the law, reversals in major constitutional cases, and clearly-stated intention to violate her judicial oath of absolute neutrality. The drumbeat remains the same. The Los Angeles Times reports that Sotomayor "completed an unlikely and historic journey." True enough. Candidates who express strong intentions to ignore their judicial oath generally don't get past first base.

AP mixes history and "firsts" into one gushing statement: "This was a history-making Senate vote in which the nation's first black President praised the Senate vote as breaking another barrier and moving us yet another step closer to a more perfect union." How preferring certain racial, ethnic and gender groups over others leads to a more perfect union remains a mystery. The Hispanic barrier could have been broken during the Bush administration, but Democrats don't like Hispanics of a conservative bent. And since Sotomayor follows in the footsteps of Sandra Day O'Connor and Ruth Bader Ginsburg, there's no first there either. So it really comes down to the Republicans allowing this alleged barrier to fall for the first time. But it was a barrier that seemed only to affect Hispanics who don't like judicial activism.

ABC World News was even more effusive. "There was joy and pride, as Hispanics across the country and the President celebrated an historic first." First, first, first. The "first" I'm waiting for is the first Obama nominee who has read the Constitution, the judicial oath, and hasn't made multiple public speeches denigrating both. USA Today writes a paean of praise that makes Lincoln look like he was born in a Boston mansion: "Sonia Sotomayor grew up speaking Spanish in a public housing project, and is now headed for a seat on the Supreme Court after an overwhelming Senate vote Thursday to make her the first Hispanic member of the court (emphasis added.)" It would have been a little surprising if the first Hispanic member of the Court had grown up speaking lesser Urdu, now wouldn't it?

So let's take a quick look at that "overwhelming" vote. Every Democrat and Independent, plus nine apparently confused Republicans, voted in favor of confirmation. But there's a little sidenote here. It is important to remember that Republicans have always abided by the simple rule that they vote for the nominee so long as the nominee has nothing in his or her record which indicates that former acts, words or track record indicate a disregard for the Constitution or the judicial oath of neutrality. Democrats have not returned that courtesy since the Bork assassination. Sotomayor doesn't even fit that rule of thumb which served the nation so well for so many years. Nine Republicans are still wallowing in the dreamworld of bipartisanship, fair play, and sound reasoning, so they voted to "allow the President his choice for the Court."

The nine cretins had spent considerable time at the hearings eliciting answers that confirmed Sotomayor's skewed judicial philosophy. This wasn't about playing by the rules, it was about glad-handing their Democrat friends. They should be completely ashamed of themselves. And I certainly hope their constituents back home have taken notice of the sell-outs. Once having established that Sotomayor believes in racial, ethnic and gender preferences, it became their duty to vote against her. Arguing over judicial philosophy such as judicial activism or the "living Constitution" and getting the answer you don't like is a difference in political philosophy which should not be taken into account in confirming a judicial appointee. But a nominee who has clearly espoused a strong desire to ignore the judicial neutrality oath deserves a "no" vote, regardless of the philosophy of the Senator voting. These nine weak-sister Republicans failed in their duty.

This was not the appropriate battle for the Republicans to "go nuclear." But having gotten answers that by all ethical standards are anathema to students of the Constitution, the Republicans should have been unanimous in their opposition. It wouldn't have been enough to stop the confirmation, but it would have been a proper demonstration of will and honesty that the Democrats could take as a future warning.

The good news is that despite all the ballyhoo and celebration of the "overwhelming" victory, Republicans who don't care about their popularity with the Democrats have actually done something that got lost in the "first, first, first" parties. So here's the part the TV talking heads, The New York Times and PBS Radio aren't telling you. Even with severely reduced numbers in the Senate over the past two election cycles, Republicans mustered more votes against Sotomayor than against any Democratic nominee since the Senate rejected Grover Cleveland's nomination of Wheeler Peckham in 1894.

You like firsts? Well, this is the first overwhelming rejection of a Democratic Supreme Court nominee by Republican Senators in 115 years. The President may have to consider appointing a qualified nominee next time instead of going bonkers over another first (like the first two-headed Supreme Court nominee, or the first card-carrying member of the Communist Party).

For my column on the most recent Sotomayor reversal: Ricci v. New Haven

For Andrew Price's column on Lindsey Graham and the Weak-Willed Republicans: Lindsey Graham