Karl Rove reviews the political landscape in the Sotomayor nomination, noting the president has gone for a reliable liberal and scored points with a key constituent group. He concludes:

While the next two to four months of maneuverings and hearings may provide more insights into the views of Mr. Obama’s pick, barring an unforeseen development — not unheard of in Supreme Court nominations — Judge Sotomayor will become the second Hispanic (Benjamin Cardozo was Sephardic) and third woman confirmed to the Supreme Court. Democrats will win the vote, but Republicans can win the argument by making a clear case against the judicial activism she represents.

I’ve seen enough of these to steer clear of predicting the outcome. But Rove is right in his central point. Americans don’t like the liberal judicial philosophy of judges making it up as they go along. Ordinary voters tend to recoil against the results this style of judging bring about. That is why liberals tend to evade and minimize their own views, adopting the tone and some of the language of legal conservatives during these battles. It doesn’t sound “right” to come out and say that judges make the law. That’s a political loser for them. (Sotomayor will need to explain away her candor on this one.)

So in a sense the fight is about judicial activism dressed up as “empathy.” It is about whether we have judges striving to put aside their personal biases or committed to elevating them in order to obliterate the impartial administration of justice. But can conservatives “win” that fight? Aren’t we continually told Obama’s so popular, Republicans are so hated, etc. Well, if the Dick Cheney/Obama face-off showed us anything, it is that personality only gets you so far.  Just as the country got a tutorial on Guantanamo they are going to get one on judicial activism. And there I think the legal conservatives’ chances are quite strong.

After all, that’s why Sotomayor is preparing to minimize and shed her controversial statements rather than tout them. (Just kidding about that policy stuff! Didn’t really mean Latinas have greater judging ability than white males! No sirree.) That’s why the White House is out spinning her decision in the New Haven firefighter case. (If they thought her decision was right and the politics would work, they’d be sending out news releases pointing out one of her finest moments in legal craftsmanship, right?)

Liberals and conservatives alike agree on one thing: if she embraced her candor and bragged about her disdain for impartiality she’d never get through.

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This entry was posted on Thursday, May 28th, 2009 at 7:07 AM and is filed under Contentions. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.