Paul R. Hollrah

The Sotomayor Nomination
June 3, 2009

Throughout the 2007-08 campaign the conventional wisdom was that the next president would be able to appoint no more than two associate justices to the U.S. Supreme Court, replacements for 89-year-old John Paul Stevens and 76-year-old Ruth Bader Ginsburg, who is in failing health. Now, with the unexpected departure of Justice Souter, another of the four most liberal members of the court, it is clear that Obama will appoint no fewer than three new justices to the court.

Although conservatives were generally not excited about John McCain’s candidacy, he did provide assurances that he would appoint strict constructionists to the high court. However, if one considers that Obama’s appointees could not possibly be any more liberal than Stevens, Ginsburg, and Souter, conservative fears of a more liberal court are largely unfounded. In the off chance that Obama would appoint replacements who would turn out to be moderate to liberal the court could, in fact, become slightly more conservative.

To receive an appointment to the United States Supreme Court, an honor that has been accorded to only 108 men and two women in the past 220 years, is a unique experience. It is such a monumental responsibility that no one can accurately predict how a given individual may react to having that responsibility, no matter what their life experiences or their past record may be. The mere act of donning the black robe and sitting down with the other eight justices is a life-altering experience.

Chief Justice Earl Warren was a major disappointment to President Eisenhower. Ronald Reagan thought Sandra Day O’Connor would be a reliable conservative vote on the court. Never in his wildest dreams did he expect her to become the moderate swing vote in most of the court’s 5-4 decisions. And George H.W. Bush must now live with the notion that Justice David Souter will go down in history being referred to as “Bush’s Folly.”

However, in the event that Obama should select replacements who are known judicial activists, men and women who see the Constitution as a “living document,” subject to the whims of the radical left, he can expect trouble even from within the ranks of his own party.

Senator Ben Nelson (D-NE) has stated that he expects Obama to appoint justices who will interpret the law and the Constitution as written, not as they may wish it to be. As Governor of Nebraska, Nelson appointed some 81 judges, including every member of the Nebraska Supreme Court. All are strict constructionists. In a recent interview with Fox News, Nelson indicated that he would support a filibuster to block any judicial activists that Obama might appoint. With enough public support, three or four other Democrats may be convinced to join him, making a Republican filibuster immune to cloture.

However, what is most worrisome for conservatives are Republican senators who still fail to understand that the rules surrounding Supreme Court confirmations changed in July 1987 when President Reagan nominated Judge Robert Bork. Bork was an excellent choice for the court, having previously served as United States Solicitor General, as acting Attorney General, and as a member of the United States Court of Appeals for the District of Columbia.

However, the thought that Reagan might appoint a strong conservative caused major heartburn within Democratic circles. Weeks before Reagan announced Bork’s selection, Senate Democrats staged a preemptive strike, asking liberal leaders to form a “solid phalanx” to oppose whomever Reagan might nominate. Bork was nominated on July 1, 1987 and within 45 min. of the announcement Senator Ted Kennedy (D-MA) made his infamous “Robert Bork’s America” speech on the floor of the Senate. Throwing down the gauntlet, he said:

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only -- protector of the individual rights that are the heart of our democracy... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice."

The speech could only have been made by a man who would drive a car off a bridge and leave a young female passenger to die a horrible death while he swam to a nearby island to begin making plans for a career-saving alibi. The historic significance of the speech is that it served to set a new low in what has become a long succession of character assassinations of conservative nominees by liberal Democrats. After weeks of bitter hearings, the Senate defeated Bork’s nomination by a vote of 58-42, with only two Democrats voting for the nomination, and a new era in the Senate’s role of “advise and consent” was born.

Although Bill Clinton’s two liberal nominees, Ruth Bader Ginsburg (1993) and Stephen Breyer (1994), were both activist judges, Senate Republicans gave the nominees a fair hearing and, in the end, voted to confirm them. However, George H.W. Bush’s nominee, Clarence Thomas, and George W. Bush’s two nominees, Chief Justice John Roberts and Associate Justice Samuel Alito, were not so lucky. In each instance Democrats did everything in their power to discredit them and to savage their reputations. Now it’s time for Senate Republicans to demonstrate that they understand the new rules of the game. It’s time to give Sotomayor’s record such a thorough examination that, even though she may eventually be confirmed, the American people will forever hold Obama responsible for having nominated her.

In yet another slip of the teleprompter in his East Room announcement, reminiscent of his claim that he’d campaigned in 57 states, Obama told the world that Supreme Court justices are charged with applying principles that were written prior to the year 9 A.D., when Jesus Christ was a child. He said, “The members of our highest court are... charged with the vital task of applying principles put to paper more than twenty centuries ago to some of the most difficult questions of our time.”

Quickly recovering from the faux pas, he went on to say, “So I don't take this decision lightly. I've made it only after deep reflection and careful deliberation. And while there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are a few that stand out that I just want to mention.”

Addressing first the concerns of the majority of American, he said,

“First and foremost is a rigorous intellect, a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand. These two qualities are essential, I believe, for anyone who would sit on our nation's highest court.”

It was pure Obama, putting words on the public record that will surely appeal to the broadest spectrum of the American people... words that he can later use to absolve himself of any responsibility when Sotomayor turns out to be just another liberal activist, unable to distinguish between the role of the legislature and the role of the courts.

Then, seeking to mollify his liberal base, he said,

“And yet these qualities alone are insufficient. We need something more. For, as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience; experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live.”

But now Obama’s role is finished. The Sotomayor nomination is in the hands of the Senate Judiciary Committee: Leahy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Wyden, Klobuchar, Kaufman, and Specter for the Democrats, and Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and Coburn for the Republicans.

One anonymous Republican staffer told the New York Times, “Everyone up here can see the political pieces on the board. No one is talking about the possibility of defeating any nominee... barring something coming out of left field.” In a premeditated surrender statement, he pointed out that Democrats have both command of the committee and a strong majority in the Senate.

The Times quotes another senior Republican aide, who also spoke on condition of anonymity, as saying that, “Elections have consequences; (Obama) won. Obviously, we’re going to stand up for our principles, but the other side has won this right to choose someone this time.”

Well, the Senate Republicans had better take their weak-kneed anonymous surrender monkeys in hand because the senators will be taking their cues from the voters... not from the go-along-to-get-along, inside-the-beltway hangers-on who work for them.

One thing is certain. Republicans will not be recruiting a former Sotomayor law clerk to testify that she told him “Long Dong Silver” jokes or tales about pubic hairs on coke cans. That’s the kind of thing Democrats do; that’s not what Republicans do. However, if the senators have any interest in being reelected they need to understand that Judge Sotomayor won’t be seated alone at the witness table; Obama will be there as well, if only in spirit. The vast majority of people do not want activist judges on the high court and it’s up to committee Republicans to paint Judge Sotomayor for what she is and to hang her tightly around Obama’s neck.

And let’s all pray that Obama will be just as surprised and dismayed at how his appointees turn out as were presidents Eisenhower, Reagan, and George H.W. Bush.