05.27.09 7:33 AM ET
The GOP's Supreme Problem
Provided we don't discover conclusive evidence that Sonia Sotomayor is a Soviet sleeper agent dedicated to the violent overthrow of America's system of constitutional government, she will be confirmed as an associate justice to the Supreme Court. Rather than stop Sotomayor, the Republican Party needs to lay the groundwork for Obama's next Supreme Court appointment by testing effective lines of attack.
At the risk of damning Sotomayor with faint praise, it’s pretty clear that she is not the second coming of Harriet Miers.
Among conservatives, the emerging consensus is that Sotomayor is an identity-politics pick. It's certainly true that Obama has gained considerable kudos by naming the first Latina to the Supreme Court. Yet this is a kind of politicking that Republicans have engaged in as well. Antonin Scalia, the most celebrated conservative jurist of our time, sailed through confirmation despite a decidedly controversial reputation as a brilliant intellectual bomb-thrower. His main asset was the fact that he was the first Italian American named to the Supreme Court, a constituency that Democrats were careful not to offend. Though greatly admired by many on the right, George H.W. Bush's nomination of Clarence Thomas was widely seen as motivated by a desire to replace Thurgood Marshall with another African American. Absent the role of identity politics, it's not obvious that Thomas would have been Bush's first choice. Had the brilliant Miguel Estrada been confirmed to the D.C. Circuit Court of Appeals, one can imagine that he'd be sitting on the Supreme Court instead of Samuel Alito. All this is to say that the identity politics charge won't stick. If anything, attacking Sotomayor as an "affirmative-action hire" will make Republicans look like bigoted bullies to Latino voters.
To have any hope of stopping Sotomayor, Republicans would have to demonstrate that she is dangerously unqualified for the job. But at the risk of damning Sotomayor with faint praise, it's pretty clear that she is not the second coming of Harriet Miers, George W. Bush's disastrous first pick for Sandra Day O'Connor's seat. Seen as an intellectual lightweight, not least by a number of Republican senators who considered her answers to basic questions concerning constitutional law bafflingly inadequate, Harriet Miers quickly withdrew her nomination, leaving the Bush White House with a black eye it really didn't need. Sotomayor, in contrast, has spent 15 years as a federal judge, including more than 10 years on the Second Circuit Court of Appeals. It's true that Sotomayor has been the victim of a rather clumsy whispering campaign. Earlier this month, Jeffrey Rosen, legal-affairs editor of The New Republic, published a short, incendiary dispatch in which he relayed vague criticisms of Sotomayor's temperament and intellect from federal prosecutors and former Second Circuit law clerks. Rosen was then condemned by a number of liberal bloggers, led by the immensely popular and always-forceful Glenn Greenwald. Some of Rosen's blog critics argued that he aided and abetted racism and sexism by carelessly passing on unsubstantiated criticisms, and Rosen was quick to apologize. But the Web contretemps has had an impact all the same, particularly on the political right. Many conservatives remain firmly convinced that Rosen's sources were right, and that he's been silenced by the forces of political correctness. Even if that were true, and there's good reason to believe that it's not, this line of attack runs squarely into the bigoted bullies problem.
Then, of course, there is the notion that Sotomayor is an intensely ideological liberal. A great deal of e-ink has been spilled on the Ricci case, in which Sotomayor backed the City of New Haven, Connecticut's decision to stop the promotion of a white firefighter because no black firefighters were eligible for promotion in the same round. The Supreme Court is about to decide on the same case, and there is reason to believe that the conservative majority will take a stand against Sotomayor's position. Keep in mind, however, that Sotomayor is replacing the liberal Souter. There will be no real shift in the balance of power, and Republicans won't gain a lot of traction by hammering away at issues that are only followed by a vanishingly small minority of Americans.
There is one issue facing the Supreme Court that a majority of Americans are deeply interested in, and that is national security. As Meghan Clyne of the New York Post argued last week, the most vexing Supreme Court rulings in recent years haven't been about abortion—which hasn't faced a serious challenge since Casey—but rather about the legal status of military detainees. The Second Circuit will soon issue its decision in the case of Maher Arar, a Canadian who has accused the American government of sending him to Syria for a brutal interrogation. Republicans should seek straight answers on where Sotomayor stands on the scope of executive authority in wartime. It's safe to expect that Sotomayor will try to avoid giving any straight answers. After all, Roberts and Alito did the exact same thing. But the questions need to be asked all the same, not least because it will send a clear signal to President Obama about his next nominee.
Reihan Salam is a fellow at the New America Foundation and the co-author of Grand New Party.