Judging Sotomayor, Part II

The level of discourse from the out-of-government party during the last two Supreme Court nominations has been brutal.

In 2005, Democrats raked Samuel Alito over the coals for a dissenting opinion he had written as an appeals court judge in Casey v. Planned Parenthood, a 1992 abortion case that eventually reached the U.S. Supreme Court. His dissent was handed down 13 years before virtually anyone in the Senate had ever heard of him. Then-Sen. Barack Obama, among many others, used this opinion (and very little else) to argue that then-Judge Alito's values were, and I quote, outside the mainstream of "core American values." It was a ludicrous argument, and only served to show how pouty the out-of-power Democratic Party really was.

It's unbelievable that every Supreme Court nomination comes down to one, or a small handful, of issues. With Alito (and to a lesser extent, John Roberts), it was abortion. 

Fast-forward to 2009. With Sotomayor, it's affirmative action. 

The Supreme Court hears roughly 100 cases every year. I could be mistaken, but I believe that the Court has ruled on exactly one abortion case since Justice Alito's tenure began. It's likely that, should Sotomayor be confirmed, she might not hear a case concerning affirmative action or race relations for two or three years.

The Supreme Court deals with an incredibly vast range of complex issues that the general public, thanks to its self-appointed opinion leaders and spongy-kneed media scourges, knows little or nothing about. Most of the Court's cases dealing with everything outside the range of hot-button issues like abortion and affirmative action -- but you wouldn't know it. Additionally, these issues can't be fit into nice, neat ideological boxes, such as "originalist," "activist" or "living Constitution." 

One example is the Court's commercial speech doctrine, and how regulations on things like billboards or television advertising square with the mandates of the sacrosanct 1st Amendment.

The 1st Amendment reads that "Congress shall make no law ... abridging the freedom of speech." A literal reading of this language -- as a small minority of justices have done in the past -- would seem to invalidate any type of governmental action that would limit speech, no matter what the circumstances. 

But a purist's constitutional jurisprudence doesn't always square with the realities of everyday life. In fact, no justice who has sat on the Supreme Court over the last two decades subscribes to this absolutist view. In fact, the late Chief Justice Rehnquist, an avowed originalist, was one of the harshest critics of commercial speech. Noting that the 1st Amendment was drawn to protect the free marketplace of ideas, and maintaining that commercial speech does not in any way contribute to such an exchange, he argued that such speech should be afforded virtually no constitutional protection. One of his kindred spirits in this regard was the arch-liberal John Paul Stevens, who frequently sided with his old friend when any commercial speech case came before the Court.

What's the point of referencing the Court's commercial speech doctrine? To prove that the job of a Supreme Court justice is incredibly complex, and isn't as easy as these "us vs. them" decisions in the areas of abortion, gay marriage and affirmative action about which Rush Limbaugh and Dianne Feinstein will inevitably rant and rave. The rhetoric of the political opinion leaders on the right will mirror the rhetoric of the left-wing moonbats who attempted to derail the Alito nomination.

Give me a sharp-minded liberal who can parse the multiple layers of issues in a commercial speech case over a simple-minded opponent of Roe v. Wade any day of the week. 

Judge Sotomayor has spent 17 years on the federal bench. If the GOP can cite a case in which she wrote a particularly disturbing opinion well outside the mainstream of modern constitutional thought, or that evinces clear political extremism, or perhaps in which she knowingly applied a clearly erroneous methodology in reaching her decision, I'd love to hear it. But that hasn't been the case -- the only two arguments Republicans have been able to come up with have been an article she wrote for a La Raza publication in the 1990s, and an out-of-context quote (and yes, I've watched the entire clip -- I bet you haven't) lifted from a panel discussion several years ago that was mirrored almost verbatim by a dissenting opinion of none other than Justice Antonin Scalia. That is not enough. I need actual, real, substantive judicial opinions. Sonia Sotomayor does not make law sitting on a panel with laymen.

I don't agree with many of Judge Sotomayor's apparent opinions, nor her larger-scale judicial philosophy. That said, it's hard to brand her anything other than a mainstream Democratic nominee. She also has a resume that is equal to that of Justice Alito, and has by all accounts proven herself to be a most capable jurist. Therefore, she should be confirmed.

Finally, with one eye on the conservative uproar to Judge Sotomayor's nomination, I'd like for our readers to recall the 2005 catfight centering upon the infamous Gang of 14, a bipartisan coalition led by Sens. John McCain, John Warner and Ben Nelson. In 2005, with the wind at their collective back, the GOP attempted to ram through the nominations of the 11 Bush judicial nominees (out of roughly 130 sent to the Senate) that the Democrats had either filibustered or threatened to filibuster. In response to Democratic foot-dragging, Senate Republicans threatened to change the Senate rules and discard the filibuster, calling it an arcane procedural mechanism that merely served to thwart the chamber's natural role as the White House's rubber stamp regarding judicial nominees.

The Gang of 14 correctly noted that changing the rules for political gain is an obscenely asinine way of doing business, even in Washington. So McCain and 6 other Republicans struck a deal with 7 Democrats in which the Democrats agreed to oppose a filibuster on three of the 11 nominees, plus (very notably) President Bush's next Supreme Court appointee, and in exchange, the Republicans agreed to vote against the rule change. Orrin Hatch's "nuclear option" failed without the requisite number of votes, four more Bush nominees were subsequently named to the federal bench, and, most importantly, the Senate rules were unchanged.

In 2009, conservative readers, isn't that filibuster a wonderful thing?

That's why you don't change the rules when you're in power.