Conservative blogger William A. Jacobson of Legal Insurrection says Yes to Sotomayor. (Hat tip: InstaPundit.)
I haven’t watched the hearings — I’ve been, er, a little busy — but based on what I know, I’m inclined to agree: conservatives should vote “Yes.” Not because of ethnic politics, nor for reasons of short-term political preservation, but as a matter of principle, and to maintain the “moral high ground” on judicial nominations.
When 22 out of 45 Democrats opposed John Roberts, and 41 out of 45 opposed Samuel Alito, the Republicans could justifiably point out that Clinton appointees Ruth Bader Ginsburg and Stephen Breyer — known liberals every bit as much as Roberts and Alito were known conservatives — were confirmed 96-3 and 87-9, respectively. That means, obviously, that the vast majority Republicans voted to confirm them.
It isn’t that Republicans liked Ginsburg and Breyer. Certainly, a Republican president wouldn’t have appointed them. But the GOP votes for those nominees were really endorsements of the notion that elections have consequences, and the president generally has the right to appoint justices of his liking. The Senate’s “advice and consent” role, according to this view, doesn’t extend to ideology, unless perhaps the nominee is so wingnutty as to be completely outside the mainstream.
Now, of course, some liberals argue, in essence, that all conservative jurists are wingnutty and outside the mainstream, but this is an illogical tautology. Just because you disagree with their ideology, just because you think it’s backwards and reactionary and bad for the country and so forth, that doesn’t make the huge number of people who see things differently into fringe whack-jobs. By any objective standard, the opposition to Roberts and Alito was clearly based on ideology, and thus violated the principle — if any such principle exists — that otherwise qualified judicial nominees should not be rejected by the Senate on purely ideological grounds.
Likewise, Sotomayor is quite clearly qualified, in a neutral, formal sense. The objections to her nomination are firmly rooted in ideology. So, if conservatives mean what they have long said about the nomination process — and if they intend to trot out the “elections have consequences” argument when, say, President Romney appoints Justice Stevens’s replacement, and needs to get his conservative nominee through a still-Democratic Senate — they should follow Jacobson’s advice, and vote “Yes” on Sotomayor.
Will such a move make any difference politically? Will it help the Republicans win that hypothetical future confirmation battle? Is the “moral high ground” really worth anything? Perhaps not. But it sure would be nice to see somebody in Washington do something on the basis of principle.
And anyway, with so little to gain by opposing Sotomayor — she’s obviously going to be confirmed, and besides, she’s a liberal replacing a liberal — and with the Republicans still playing defense in the Senate (making my Romney scenario not at all far-fetched), I think it makes sense, even if one is thinking about strategy rather than principle, for the GOP to make the long-term play here, and keep the “elections have consequences” argument in their arsenal for future battles that will mean more.
CLARIFICATION: I’m not expressing an opinion on whether the Senate’s “advice and consent” role should or should not extend to ideology. I’m merely saying that conservatives and Republicans have, for the most part, long professed to believe this, and have been relatively consistent in promoting this view regardless of the political orientation of the particular appointment. Hence, to continue to espouse this position consistently is to maintain the “moral high ground.” Whether the position they’re consistently espousing is correct is a separate question.
