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Re: There Is Winning, And There Is Winning

Jonathan Adler echoes the view that in undergoing a confirmation conversion, Sonia Sotomayor has undermined the philosophy and interests of her most fervent supporters:

It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy — a philosophy like that articulated in her speeches and defended by the president — would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal — as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel — does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

Even the New York Times has figured it out:

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

[. . .]

Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.

She repudiated the president’s assertion that “what is in a judge’s heart” should influence rulings and rejected the liberal idea that the Constitution is a “living” document whose meaning evolves with society. Instead, she said the Constitution was “immutable” and did not change except by amendment. And she dismissed any role for foreign law in deciding cases, an influence some liberal legal experts argue should be considered.

Louis Michael Seidman, a Georgetown University constitutional law professor, said Judge Sotomayor adopted a “fairy tale” definition of judging that ignores the discretion they have to decide hard cases where the legal materials do not dictate outcomes.

“She reinforced the official ideology, and it makes it that much harder for other judges later on to talk to the American people as if they were adults about what courts actually do and what constitutional law consists of,” Mr. Seidman said.

Seidman is not alone:

Doug Kendall, who is president of the liberal Constitutional Accountability Center and close to some Obama administration officials, expressed his own mild disappointment.

“From my perspective, from the perspective of a progressive legal organization, she could have been more forceful in arguing or pointing out where the Constitution itself points in a progressive direction,” he said.

[. . .]

Mr. Kendall said he was disappointed by what he considered Judge Sotomayor’s tepid defense of the idea that American judges can cite the opinions of foreign judges. “She could have been more aggressive,” he said.

One wonders who came up with this gambit and what they were thinking. It was almost as if the Obama prep team pulled out the playbook from another Supreme Court nomination and said, “Hey, this worked!” But what “works” for one judge, because it accurately reflects his true judicial philosophy, sounds preposterous coming from another if it is belied by a career of speeches and advocacy. We must still return to the “why” — the puzzle as to why a liberal president, selecting a liberal justice with 60 Democrats in the Senate, has sent up a nominee to spout judicial conservatism.

Well, when in doubt about some aspect of the Obama administration, think politics. Conservatives have long argued that judicial activism sells poorly with the public. Poll after poll tells us voters reject the notion that judges can make up law as they go along. Conservatives going into the confirmation hearings were quite open about their intent to paint the nominee — and thereby the president – as outside the mainstream. And that, of course, fit well into their struggle to hold back the tide of radical leftward policy flowing from the White House and begin to recapture the center of the political spectrum.

So maybe the Obama team strategy here was simple: don’t give conservatives any more ammunition, make Sotomayor as inoffensive as possible, bank on the liberal base understanding the “game” and forget for now the decades-long battle over judicial philosophy. The Obama administration, like the Obama campaign, must convince Americans that Obama is no radical. With health care and the rest of his agenda in the balance, better not to flaunt their liberalism. Now is no time to have a nominee, especially one short on intellectual firepower, making the case for an expansive view of the Constitution and for judges to unshackle themselves from the words and meaning of the texts before them.

That, I think is the most logical explanation for a confirmation conversion so sweeping and so unbelievable that liberals and conservatives alike are left dumbfounded.


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