Judiciary

Jon Henke made a post a few days ago, that was maybe a bit short on substance, but nevertheless made his point. Republicans have not done very well in the world of public opinion concerning their criticisms of Judge Sotomayor. While I agree that Judge Sotomayor has said some unfortunate things, the way that some of the comments by Gingrich, Rush, Steele, and others have come across have not helped our case. I made some responses to Henke's post on why I thought that these individuals were being given a microphone. However, what was even worse than the failure of those perceived to be leaders on our side to effectively criticize Judge Sotomayor were the comments made in response to Henke's post. Here, I respond to Henke's call for Republicans to "grow up" in a meaningful and constructive way with how I would go about questioning Judge Sotomayor as a Republican Senator on the Judiciary Committee.

Sen. Bannon: Good morning Judge Sotomayor. Allow me to be one of the first to welcome you and you're lovely family here to the Senate. As you know from your distinguished career, but for the folks watching on CSPAN or Youtube or on the nightly news, we are here today because of the Senate's role under Article II of the Federal Constitution to give advise and consent to the President when he should have the opportunity to appoint a nominee to the Supreme Court. It is one of our many functions as a check on the two other branches of government,  the Executive, in the form of the President and the Judiciary, in the form of the Supreme Court.

As is the case with most likely all of the Supreme Court nominees that the Senate gets to question, your credentials are impeccable. So much such that I will only briefly review them to acknowledge to all paying attention that you are most definitely qualified on paper to sit on the Supreme Court. Princeton Undergrad and Harvard law,  ultimately culminating in a Judgeship on the 2nd Federal Circuit Court of Appeals and nominated by the President to sit on the highest court in the land. Your achievements stand as accomplishments to be proud of and let us hope that you are placed as a role model for those outstanding achievements in the lives of all of our young.

Judge, there is a lot going on outside right now. The newspapers and other media are paying attention. Right, left, up down, crisscross are all paying attention and have been screaming ever since you were nominated. In fact the entire world is most likely paying attention, but you know what Judge, I want to bore them to death. I want to sit here, just two people, a United States Senator and a United States Judge, and have a scholarly conversation about that great founding document of ours, the Constitution of the United States, only with the realization that the points that are made in our scholarly conversation can indeed be very exciting and have real world effects despite sounding like we are up in the clouds. Do you think we can do that Judge?

Judge Sotomayor: Of course, Senator Bannon.

Sen. Bannon: Good Judge, then lets get right to it and lets get the main thing that has been causing all of that screaming and manuevering out there, and lets get it out of the way and then lets move on to bore everyone. Judge Sotomayor, Do you believe that the Constitution of the United States is colorblind?

Judge Sotomayor will then answer the question but no matter what she answers we should just let it go. Either she will hang herself and say that the Constitution is not colorblind or else we will look like we are badgering her about a petty issue.  I say we should move on, because there are a number of other Constitutional questions that I will outline below that are much more important than whether a Judge thinks Latina women are better than White men, because Judge Sotomayor will practically speaking never be able to rule that Latina women are better than White men in any form whatsoever.

Other Questions I would ask Judge Sotomayor: (Note: It is her failure to answer these questions that I would press her on. Here we are treating her as any other normal nominee, questioning her judicial philosophy on things likely to come before the court, not getting in a battle about race with the first Latina woman every nominated to the Supreme Court).

1. Does the dormant commerce clause exist? If so, please explain how you would approach a case dealing with the dormant commerce clause.

2. Can you please discuss your take on Youngstown Sheet and Tube v. Sawyer, specifically addressing Justice Jackson's 3 part  concurring opinion?

3. Can you discuss your view of the 10th Amendment's role in the Constitution?

4. Can you please discuss your take on the caselaw leading up the decision in Kelo v. New London? (Notice that I did not ask her view on this case, because she will give the "its an issue likely to come before the court" response. But there would be no reason not to discuss the two important cases that were cited in Kelo).

5. Do you believe that Miranda rights are Constitutional rights?

6. Can you please give us your definition of Pornography? (Tie this into some statement about how more and more children are preyed upon because of online predators, etc.)

7. Could you please give us your opinion of the standards the court must look at in determining whether enough has been met under rule 8(a) of the Federal Rules of Civil Procedure?

8. Can you please discuss the equal protection clause of the 14th Amendment and how you would have applied it if you had been on the bench when Korematsu came to the Court?

9. Ought international law be used in interpreting the Constitution of the United States?

10. Does the Constitution permit the legislature to strip the United States Supreme Court of jurisdiction over an issue?

Note: Most of these questions are not particularly hot buttoned topics and, if they are, they are certainly not framed that way. Secondly, for most of these questions, the standard "non-answer, answer" would not only be unacceptable to the right, but would likely be unacceptable to the left as well. These are the types of questions, for a myriad of reasons, a judicial nominee would have to provide some type of answer to, or else there could be a case made to the majority of the American people that there was a valid reason to vote against her/him. 

The debate over whether and how much Senate Republicans should oppose Sonia Sotomayor is grinding along. I personally don't think it's the worst thing in the world if Republicans got more aggressive than they currently seem to be comfortable with, and for the following reasons. 

Not Blowing the Whistle on a Solid Liberal Like Sotomayor Creates a Bad Precedent for Decades to Come. The left is trying to spin the Sotomayor nomination as a pick in the mold of what moderate conservative John Roberts was to Bush -- a moderate liberal "slam dunk." In reality, she is more like the liberal Sam Alito, whose strongly conservative tendencies were seen as a suitable replacement upon Rehnquist's death (remembering that Roberts first had to clear a lower conservative bar to replace Sandra Day O'Connor). Is there any doubt that Sotomayor wouldn't at least tie Ginsburg and Stevens as the biggest liberal on the Court?

The calculus is this: if you let a leftist judge sail through where an Alito would get at least 40 no votes you create a precedent whereby it's considered okay for Obama or future Presidents to nominate far-leftists with impunity, while conservatives always have to jump through extra hoops. The President gets his judges most of the time, but differences are made at the margins.  Republican Presidents will always have an incentive to be more cautious or play games with Supreme Court picks, as Bush tried to do in nominating Harriet Miers, which was initially seen as a play to placate Harry Reid, who wanted a non-judge.

In past years, Senate Democrats have been far, far more aggressive in stalling Bush judicial picks than even Republicans were in the late Clinton years. Republicans played up their light treatment of liberals Ginsburg and Breyer during the 2005 court fights, even coining the term "The Ginsburg Precedent" to legitimize bipartisan support for an ideologue with judicial credentials, but where did this get us exactly? The media's playing up the danger of opposing a minority is cruelly ironic in light of the Democrats' shameful treartment of Miguel Estrada and Janice Rogers Brown, and their specific strategy of Borking minority conservatives to lower courts to head off a future Supreme Court pick. Schumer and Co. play for keeps, and Senate Republicans should not be afraid to do the same when we are talking about lifetime appointments. 

We Can't Be Afraid of Legitimate Criticism of the "First" Minority. Much hay has been made of how delicately Republicans will have to handle the first Latina nominee, as though the media assumes that the GOP's first instinct would be to race-bait.

Well, here's some news: Sotomayor is not the only "first" minority on the political scene today the media routinely shields with a protecting coating because of the genuine historicity of their rise. Another lives at 1600 Pennsylvania Avenue. Many of the same reasons for treating Sotomayor "delicately" were brought up as reasons for treating Obama delicately last year, so much so that the heroic self-conception of the press as a check on the government has become disturbingly laughable.

Republicans cannot shy away from legitimate critcisms of Sotomayor's job performance and judicial philosophy, just as we will have to learn to more effectively criticize Obama. If you concede the point that criticism of an historic, "first" minority is out of bounds, that doesn't say much for GOP prospects for the next eight years.

At the same time, we will need to ostracize those who would bring ethnicity into the equation. If Republicans don't like the tenor of the opposition, we should not be afraid to nuke the bad actors on our side while amping up criticism of Sotomayor's legal record. The trick is not so much being delicate but being rough both with the left and certain people on the right to insulate against charges that our opposition is anything other than policy-based. The ideal messaging to my mind would be as follows:

1. Tom Tancredo is an idiot.
2. Sotomayor's decisions, her stated penchant for "making policy" from the bench, and her high reversal rate among those she aspires to join all render her nomination profoundly troubling.
3. Tom Tancredo is still an idiot.

Remember also: Supreme Court fights are inherently elite D.C. fights. Don't expect voters, even Latino voters, to passionately engage. Most people correctly perceive the Court as being far removed and even irrelevant to their daily life and whether they will keep their job -- and that's as it should be. Has there ever been a mass movement for or against a Court nominee, even a Thurgood Marshall, a Sandra Day O'Connor, or a Clarence Thomas?