Tuesday, May 26, 2009

Obama's Supreme throwdown

President Obama today nominated New York federal appeals judge Sonia Sotomayor to become the 111th Justice of the Supreme Court, as well as the nation's first Hispanic and third woman to serve as Supreme Court Justice. Barring discovery of closet skeletons that eluded detection in her two previous vettings for the federal bench, Senate confirmation is probable due to the Democratic majority there.

These facts are the rallying cry for the next (and thoroughly expected) wave of attacks from Republican conservatives. They’ve vowed for weeks now to oppose whoever Obama named to the vacancy set to occur when Associate Justice David Souter steps down at the end of June.

Already it’s the usual suspects weighing in: talk-radio Doberman and former recreational pharmaceutical enthusiast Rush Limbaugh today loudly denounced Sotomayor as “racist”; Judicial Watch’s Tom Fitton adopted a similar viewpoint in his conservative blog, implying that Sotomayor would “put her feeling and politics above the rule of law.” Former Arkansas Gov. Mike Huckabee condemned her nomination (inexplicably calling her “Maria” in the process).

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But the critics in the right wing are facing an uphill battle that’s got less to do with being outnumbered in the Senate and more to do with their adopting the GOP’s customary strict-obstructionist position on all things Obama. This time, simply saying “No!” may not be enough. This nomination to the nation’s highest court complicates the inevitable, reflexively partisan reaction from the right, in major ways:

¶ Any effort at opposing Sotomayor’s nomination calls into question her previous nomination to a federal bench by a previous Republican president: George H.W. Bush in 1991. The conservatives can’t call Sotomayor’s qualifications into question without implicitly calling into question the judgment of one of their own. That’s problematic when you’re trying to mount a purely partisan attack like the one the conservatives have already begun.

¶ The Republican opposition to any Obama choice for the high court has already galvanized itself around Obama’s use of the word “empathy” to describe one of the characteristics that would help decide his choice. The Republican right has twisted the word into a partisan shibboleth, the club they’re using to suggest the word is code for a judicial philosophy that’s biased in favor of interest groups and special pleaders. They’re using this E-word against Sotomayor, working to paint her as some ideological hysteric determined to bend the Constitution to her warped, liberal will.

It’s a weak and utterly emotional argument at odds with the word’s dictionary definition (“ability to share in another’s emotions or feelings”), the fundamentally humanistic aspects of law dating back to the Magna Carta, and with the basically empathic endorsement of life, liberty and the pursuit of happiness enshrined by the Framers in the Declaration of Independence.

The emotionalism that conservatives will attempt to arouse with the word “empathy” already works against them as a matter of our own national history. Empathy in the defense of justice is no vice.

¶ If the Republicans insist on a long and bruising confirmation fight, they certainly risk further alienating themselves from the nation’s Latino Americans. At more than 45 million in number, they’re more than a monolith; Hispanic Americans are, by sheer numbers and indicated by increased voter registrations, the new and emerging force in American politics.

The GOP suffered broad declines among Latino voters in the November election; with the 2010 midterms about 18 months away — in political terms, that’s the day after tomorrow —the Republican party can ill afford making more enemies among a voting bloc that’s pretty much deserted them already.

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Barack Obama has proven himself to be a president enamored of the careful decision, the reasoned and articulate defense, the circumspect reaction. But you have to believe Obama has thrown down the glove to the conservatives with something just shy of a schoolyard dare, all but defying the Party of No to oppose Sotomayor’s nomination. The GOP will rise to the bait of what it thinks is a tempting target, but there’s not much there there.

It’s thought that the graybeard Republicans of the Senate Judiciary Committee will slow-track Sotomayor’s nomination through the confirmation process, just to prove they can do it.

But the choice of Sotomayor for the Supreme Court — one of who knows how many opportunities for nomination President Obama may have in the next three years and eight months — points to the confidence of a president making good use of his ascendancy, and the weakness of a party bent on opposing him on reflex, rather than principle.
Image credit: Sotomayor and Obama: The White House. Magna Carta, 14th century manuscript: Public domain.

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