OUR INK-STAINED INTELLECTUALS this week knocked Senator Cornyn for declaring against Judge Sonia Sotomayor. The nut of the argument:
Sotomayor's credentials are solid, and she is no more a judicial activist than the current conservatives on the high court.
Let's stipulate for purposes of argument -- not necessarily because it's true -- that Ms. Sotomayor's academic and professional credentials are first-class.
What the Chronicle ignored is that Supreme Court justices are no longer confirmed on the basis of their qualifications but on the basis of their judicial ideology.
This is not a point of speculation. It's a fact. Senator Charles Shumer declared the primacy of ideology with a much-remarked-upon op-ed in the New York Times in June 2005.
Pretending that ideology doesn't matter -- or, even worse, doesn't exist -- is exactly the opposite of what the Senate should do.
The Senate's most liberal member made the same point in his 2005 statement about why he would vote against Judge John Roberts, despite the nominee's excellent resume and admirable character.
There is absolutely no doubt in my mind [that] Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of differentpoints of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparently to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the federal court -- adherence to precedence [read precedent], a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.
But, of course, Senator Barack Obama joined twenty-one other senators in voting against Judge Roberts. And he did so on ideology, though he expressed it in a way that disguised the point. The hard cases, Mr. Obama said:
can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works [Unca D: a good workable definition of ideology, that], and the depth and breadth of one's empathy.
Senator Cornyn followed Mr. Obama template almost exactly, though far less eloquently -- first with effusive praise, then with concern about the candidate's judicial ideology.
[Going] into the hearings, I found much to admire about Judge Sotomayor's record. She is an experienced judge with an excellent academic background. She has the temperament we expect from members of our highest court. And, for the most part, her decisions a district court judge and on the second court of appeals were within the mainstream of American jurisprudence.
Yet going into the hearings, I also had questions that she needed to answer. While her record was generally in the mainstream, several of her decisions demonstrated the kind of liberal judicial activism that has steered the court in the wrong direction over the last few years.
And many of her public statements reflect a surprisingly radical view of the law. . . .
So Mr. Cornyn voted Ms. Sotomayor for what can only be described as ideological reasons, just as Senator Obama voted no against Judge Roberts.
The Chronicle editorial largely ignores judicial ideology, except in this odd parting shot: "[She] is no more a judicial activist than the current conservatives on the high court."
Notice that the editors did not bother to say she was nonideological. They argued explicitly that her judicial idology is no more "activist" than the ideologies of the four judicial conservatives on the court. The implicit point is either that ideology does not matter ("we're all activists now") or that fair play justifies or requires a vote for Ms. Sotomayor ("you got your activists; we deserve ours").
That the conservatives are "activists" is a common talking point of the left, designed to draw traction away from conservatives' righteous criticism of liberal judicial activism.
What's wrong with this false equivalence is that activism in moving our law away from its constitutional moorings and activism in moving it back are not the same thing. One is wrong, the other right.
It's not the "activism" that matters. The word itself is slippery and stands for little more than "doing something." What matters is what.
The Chronicle's editorial uses two common liberal tactics.
One is to try to ratchet the court leftward by approving (or remaining silent on) ideological litmus tests as a means of blocking conservative jurists but demanding that liberal candidates be measured by the two traditional tests: competence and character. Anything else, as the Chronicle wails, is mere politics.
The second tactic is to try to ratchet the court leftward, intellectually, by refusing to engage the issue of judicial activism in a serious way.
A serious Chronicle editorial might well have said, "Sure, there's evidence she is a judicial liberal. That's what we like about her. We don't expect conservatives like Mr. Cornyn to support her, but, hey, we won the election.
In a perfect world, competence and character would be all that mattered. Presidents would not merely be allowed to nominate ideologically sympathetic justices, but would be expected to. A political consequence of winning the White House and the Senate would be winning the power to influence the future of the court.
Conservatives cannot afford to follow that strategy, however, if liberals do not. And liberals -- proudly -- do not.
Under the new rules of engagement, Mr. Cornyn's opposition to Ms. Sotomayor should not be criticized as merely political. It was, in fact, far more principled, and realistic, than the Chronicle's snarky editorial.
UPDATE: Thanks for the link from blogHouston and (dare I repeat myself) Kevin Whited by way of Diigo.
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