Charles Krauthammer left many of us scratching our heads with this take on Senora Sonia, and particularly on the Ricci case:
What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No “temperament” insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy.
On the Ricci case. And on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats’ enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.
Sotomayor shares President Obama’s vision of empathy as lying at the heart of judicial decision-making -- sympathetic concern for litigants’ background and current circumstances, and for how any judicial decision would affect their lives.
Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy -- and unequivocally for the principle of blind justice.
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Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds -- consistently violated by the Democrats, including Sen. Obama -- that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.
One of the great things about blogging is the ability to link to someone who has already said exactly what is on your mind. I was preparing a response to Krauthammer, but Andrew McCarthy beat me to it:
The emphasis on “solely” is in the original, and it puzzles me all the more. The only reason to confirm her is that a president is entitled to deference on court picks? And what on earth does the “mainstream views of the winning party” have to do with it?
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And in any event, assuming you could figure out what the proper mainstream is, why should it make a difference when we are picking a judge? A Supreme Court justice is supposed to apply the law, not reflect the political sentiments of some popular majority. Let’s say Congress enacts a law that is bad but constitutional. Most people would probably not want the law to be given effect, but the judge’s job is to validate even the stupid laws — even the laws the judge herself does not like — as long as they don’t run afoul of the Constitution. Whether such a decision is popular or representative of mainstream views is irrelevant: If the mainstream wants, it can change the law small-d democratically.
If every senator followed Dr. K’s advice, no tally would distinguish bad from good judicial candidates. Even the bad ones would get their lifetime appointments on a 100-0 senate confirmation vote, thus encouraging the selection of more bad candidates. What is wrong with voting against a candidate you do not believe should get the job — even if you know, based on the senate numbers, that the bad candidate is going to be confirmed regardless of your vote?
If Charles’s point were that the president is entitled to an up-or-down vote on his judicial nominees, and that Republicans should not use filibusters and other senate privileges to block nominees like Democrats did to Bush (and like Republicans, to a lesser extent, did to Clinton), that would be a perfectly respectable position. In fact, as I’ve argued, I think it’s the sound constitutional position though I don’t believe in unilateral disarmament, either. (For now, the tension between those positions is academic since the numbers to support a filibuster are not there.) But, at most, the senate owes the president only to have a confirmation vote, not to win a confirmation vote.
I’m with McCarthy. Senators are not required to join the “mainstream.” Indeed, they define its boundaries by their votes. Senora Sonia has been exposed as a biased judge and she need not be elevated. Let her squeak through with the votes of Dem hacks and tar them with those votes when they face the electorate again ... and every GOP senator who votes for her confirmation should get challenged in a primary.