Justice Sotomayor

Well, it's official. President Obama has made his first Supreme Court pick. The winner is (drum roll....) Sonia Sotomayor, who will be the first Hispanic justice (and third female). As should be expected from a liberal president, she promises to be a liberal justice. Therefore, as a conservative, I guess I should register pro forma disapproval. However, she replaces a member of the liberal bloc on the court, so except for the fact that she's younger, nothing really will change, balance-wise. Moreover, she has been an appeals court judge for a good while (and was approved in that appointment by a Republican-controlled senate), and was originally appointed to the bench by Bush 41 (as part of a deal that basically gave the pick to NY Senator Daniel Patrick Moynihan). She was top of her class at Princeton and Yale, after rising from poverty in the South Bronx. And of course, there's the reality of math--if Democrats hang together, they should be able to get Donald Duck confirmed if they want to, and he doesn't even wear pants! (Of course, Donald is both white and male, so he was never considered.)

There is already talk among some conservatives that she ought to be vigorously opposed, for a variety of reasons. One is that Obama made a big deal out of "empathy" as being key to his pick, which sticks in the craw of those of us who still feel like justice should be blind. Others cite her relatively high reversal rate on the appellate bench as evidence of a willingness to attempt to legislate from the bench, and further point to the fact that she was caught on tape once saying that "courts are where policy is made." Others are quick to jump on an article written in the liberal New Republic a while back in which Jeffrey Rosen hinted that she was not an intellectual heavyweight of the caliber of a Scalia or Roberts.

None of these are the real reason why Republicans want to oppose her, though. The real reason is that they are sick and tired of the double-standard that allowed Robert Bork to get crucified back in '87, Clarence Thomas' character to be assassinated under Bush 41, and most recently, for large numbers of Democrats to vote not to confirm the obviously-well-qualified Roberts and Alito (indeed, then-Senator Obama was anti-Alito to the point of considering a filibuster). They ask, and not unreasonably, "if these are the new rules, aren't they the same for both sides?" Why should the right always be bound by the Marquess of Queensbury Rules while the left fights like an episode of MMA on Spike TV late-night?

Well, I feel that pain. I really do. And there would be a certain satisfaction factor to dishing out what we've been taking. But there's game theory at work here. This fight is unwinnable, both in terms of the votes and also on the politics. Fighting Sotomayor with the "Alito Standard" would be spun by the media as anti-woman and anti-Hispanic. Better to keep the powder dry and point back to the bipartisan, smooth, cordial treatment given her when the timing is better, or a pick really does have a chance to change the balance of the court.

All that said, I am deeply conflicted over the divide between good, even "Christian" behavior towards ideological foes and good politics. My heart wants to extend far more courtesy to our current president than George W. Bush ever got. I want to take the high road, whether on judicial confirmations, culture issues, or whatever. I don't want to stoop to the level of playing dirty. But my gut says what someone (maybe Bear Bryant) once said about SEC football: "if you ain't cheatin', you ain't tryin'." One need only look at the assaults on Carrie Prejean, Sarah Palin, Joe the Pumber, or even Justices Roberts and Alito (not to even mention George W. Bush), to realize that there's plenty of dirty pool going on. I'm not sure that it's in the best interest of the nation for the right to roll over and die rather than sully our hands.

Last night (Memorial Day) I had the opportunity to watch the great 1941 movie Sergeant York, with Gary Cooper. Alvin York was a devout Christian (a member of the Church of Christ) from Tennessee. He pleaded not to be drafted into WWI because he did not want to kill. He was turned down because his church had no written creed that forbade war. But when he found his men penned in by machine gun fire in the Meuse-Argonne offensive, he decided that the only way to save hundreds, maybe thousands, of lives, was for him to do that which he abhorred, and take lives himself. York was one of those Tennessee sharpshooters who could handle a rifle from the time he could walk. He picked off 20 or more men before 132 Germans surrendered. York won the Congressional Medal of Honor and is one of the USA's greatest heroes. Don't get me wrong--I'm not suggesting that politics is the equivalent of physical war, and I'm not advocating a slide to the lowest common denominator. I'm also not saying that the end justifies the means. But we have to ask ourselves, in many cases, what are the consequences of our actions, and also of our inaction. In the case of this nomination, there is minimal up-side potential to resistance, and serious down-side. But that may not always be the case.