It is one of those curious ironies of life that the best thing that liberals could do right now would be to oppose the confirmation of Sonia Sotomayor to the Supreme Court. Why? For many reasons.
Opposing Sotomayor will make it more likely she is confirmed. It is simple politics (a game that the Democrats are still not all that good at playing). Let’s assume for a minute that there is any chance at all that Sotomayor will not be confirmed by the Senate (which there isn’t). It will still be better for liberals, especially those on the extreme left, to oppose her. After all, if all conservatives oppose Sotomayor, but all liberals support her, it makes her look like an extreme liberal. It just doesn’t help when the website for “Marxist Thought Online” has nothing but good things to say about Sotomayor.
If both the extreme right wing and extreme left wing oppose her, that is comforting to moderates, who are then more likely to support her. After all, Sotomayor may be a liberal, but she is a fairly moderate liberal, just like Justice Souter, whom she will replace (coincidentally, both were originally appointed by Bush Sr., a Republican).
Also, having liberals oppose Sotomayor will actually make it more likely that Republicans will support her. Because if they succeed at blocking her nomination, then the left could force Obama to nominate someone much further to the left.
On what basis could the left oppose Sotomayor? For starters, just for not being liberal enough. Or for this ruling concerning a blogger, and against free speech. Plus, the only opinion written by Sotomayor that has anything to do with abortion was against a pro-choice group. Imagine the reaction from the right if Obama threatened to appoint a hard-line pro-choice justice to the court! I’m sure the left can find plenty of other things if they just looked, instead of fawning all over her.
The left should oppose Sotomayor, even though they want her to be confirmed. As I said, there is virtually no chance that Sotomayor will not be confirmed. Yes, the Republicans could try to filibuster her, but they won’t. Heck, a bunch of Republicans voted her onto the appeals court, and Obama only needs one Republican to vote for her to prevent a fillibuster. Not to mention that if the Republicans block Sotomayor, they will completely lose the Hispanic vote for a very long time.
However, liberals should still oppose her. Why? In order to understand why this is the best thing for liberals to do, you need to understand why the extreme right is opposing her, even though they know she is a shoo-in.
The real issue here is not Sotomayor, it is the next Supreme Court justice that Obama appoints. It is virtually certain that Obama will get to nominate at least one, and probably two or more justices to the court. The key is the ideological balance of the court. Souter was considered a liberal, so replacing him with another liberal doesn’t change that balance. But what happens if a conservative justice retires?
The reason the right is making so much noise about Sotomayor (when they have no chance of blocking her) is so that if Obama appoints a liberal to replace a conservative justice in the future, they will be positioned to block that. They can say “we let you appoint an extreme liberal to the court last time, we can’t let you change the balance of the court”. To do this, the Republicans have to paint Sotomayor as a hard-left liberal.
Which is why they are pulling out all the stops. Since they aren’t actually going to be able to block Sotomayor, they can say all kinds of crazy things about her, even things that are clearly not true. Let’s look at some of the mud that conservatives are throwing at Sotomayor:
- Rush Limbaugh claims that she is a racist for saying that being a Latina woman informs her judicial outlook, when Justice Alito said pretty much the same thing during his confirmation hearings.
- They claim she is in favor of reverse discrimination because of a court case where some white firefighters were denied a promotion. What’s hilarious about this argument is that that particular case was unanimously decided on the basis of the law, while the right is claiming that the result wasn’t fair. This is from the same people who argue loudly against activist judges — saying that judges shouldn’t employ empathy, that they should only rule on the law and the constitution — but they hypocritically attack her for not being an activist in this case.
- They claim that she isn’t smart enough. This one is truly hypocritical. She graduated summa cum laude and Phi Beta Kappa from Princeton and was an editor of the Yale Law Review. Does Karl Rove consider this evidence that she is smart? “Not necessarily. … I know lots of stupid people who went to Ivy League schools.” But back when people were calling Dubya stupid, Rove defended him by pointing out that Bush went to Yale and had an MBA from Harvard.
- They claim that she is rude and obnoxious (which is ironic, coming from some people on the right). Most of this is based on an editorial in the New Republic by Jeffrey Rosen, which quoted anonymous sources critical of Sotomayor. But even Rosen has endorsed Sotomayor, and called for her quick confirmation.
The real problem here is that the Republicans have once again defined the debate about Sotomayor, forcing Democrats to defend her, even against stupid and easily disproved smears, and even though their defense of her actually hurts her more than it helps. Will the Dems ever learn?
Can Dems stop defending Sotomayor? At the very least, they should ignore conservative attacks on her. But even better would be to use this fight as an opportunity to attack the conservative right. After all, the Bush administration spent eight long years destroying our constitutional rights, ignoring the rule of law, writing memos saying that torture is legal, and politicizing the jobs of federal prosecutors and judges. If the Dems play their cards right, it could be the GOP that is on trial and not Sotomayor during the confirmation hearings.