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May 28, 2009

Judging Sotomayor: A Moment of Truth for Conservatives

Blogging is a strange and often exhiliarating experience. It can also be uniquely depressing at times. In the over five years since I wrote my first post over at I Love Jet Noise, I've seen the Republican party go from dominating all three branches of the federal government to sitting on the bench, desperately hoping for a chance - any chance - to get into the game.

Our response to this predictable reversal of fortune is illustrative, if hardly inspiring. The current meme du jour blames RINOs and moderates for our troubles. The fact that this approach raises emotional arguments over the empirical experience of the last half century bothers the finger pointing crowd not a whit.

For as long as I've voted Republican (over 30 years at last count), conservatives have prided themselves on reason and logic informed by an objective approach to the facts. It seems, therefore, not unreasonable to ask self appointed purgers of anyone-who-fails-to-demonstrate-sufficient-ideological-purity, "How do your arguments stack up against the historical record"?

power_sharing.jpg

If the blame for losing the last election rests with moderates, what explains the fact that George Bush (who "real conservatives" continually assure us is not a "real conservative") was elected exactly the same number of terms as Ronald Reagan? And how many times, since the law was changed to prohibit three term Presidencies, has either party retained control of the White House for more than two terms in a row? The facts speak for themselves.

In adopting 'change' as his mantra, Barack Obama adeptly seized both human nature and the national mood at flood tide. It should surprise no one that a nation which believes absolute power corrupts absolutely might be ready for change after eight years of Republican rule.

That we did as well as we did in the last election is an enduring testament to the power of conservative ideas. That we have allowed an utterly unremarkable transfer of power to render us as hysterical, desperate, and shrill as the Bush is Hitler crowd is a damned shame. Folks, it's time for a gut check. But more importantly it's time for Republicans to take a deep, cleansing breath and regain our sense of perspective.

Politics is the art of persuasion. The problem with conservative arguments is that although we're quite good at telling the public what's wrong with what we oppose, we are not so adept at articulating what it is we support. It's not enough to run down the competition. A good salesman highlights the positive attributes of his product as well as distinguishing it from the competition. For as long as I can remember our opponents have successfully (and all too often with our enthusiastic help) characterized conservatism as a negative political philosophy. We are painted as a party full of fearful and reflexively authoritarian killjoys, out to harsh the national mellow and steal everyone else's corn flakes. Unfortunately, our response to this inaccurate portrayal often does more to confirm than refute that flawed premise.

Responding with more negativity doesn't persuade anyone we're not negative. As often and as deeply as I have disagreed with Peggy Noonan, she manages to get some things right. There is much to be said for the appeal of the happy warrior:

A leader cannot seem ambivalent about crucial actions and decisions, and he can't seem so weighed down by the facts and implications of those decisions that people begin to wonder if he's lost his fight. There's a reason people like a happy warrior. A happy warrior tends to be a winning warrior.

This was the secret of Ronald Reagan's charisma, and of his success. He was so confident in his beliefs - so comfortable in his own skin - that he inspired confidence in others. His positive outlook was infectious; he consistently and enthusiastically articulated a positive vision of where he wanted to take America. Reagan envisioned a nation full of happy, hard working, independent citizens joyfully working to create a better life for themselves free from the hectoring interference of the nanny state. Though he rarely compromised his strong beliefs, he was unfailingly charitable and pleasant to his opponents. So much for the notion that the only way to win in politics is to kneecap the opposition or descend to their level. Confident leaders don't resort to such tactics. They are not threatened by spirited competition in the marketplace of ideas.

Nor are they threatened by dissent within their own ranks. As one of those chimeric moderate fiscal conservatives, I'm just as tired of listening to my own party talk about purging RINOs or setting up straw men like the idea that moderates want the RNC to unilaterally disarm itself (or that we shouldn't fight back against criticisms we disagree with). The debate, as I see it, isn't about goals or even about core beliefs. It's about tactics.

And more than anything else, it's about integrity: the integrity of our stated principles and ensuring that our own actions don't undercut or flatly contradict the message we're trying to sell. In this regard, the nomination of Sonia Sotomayor represents a golden opportunity for conservatives to market ourselves and our ideas to the voting public. The question is, what will we do with that opportunity?

In watching the debate over the nomination of Sonia Sotomayor, I've found myself returning again and again to an ancient legal maxim: Venire contra factum proprium non valet. Loosely translated, it means "Arguments which contradict one's prior actions will fall on deaf ears." For as long as I can remember conservatives have decried the Borking of judicial nominees on ideological grounds. But more than this, we have vigorously defended the right of a sitting President to nominate jurists whose views are compatible with that of the party in power.

We have also vigorously objected to the cheap, reflexive application of labels like "racist" as ad hominem arguments which fail to counter our substantive objections to racial preferences or political correctness codes. This begs the question: given our past positions, how does it advance our cause to adopt tactics we've derided in the past? In this, I find myself in enthusiastic agreement with that notorious RINO and raging moderate, Charles Krauthammer:

There are principled arguments to be made here. Not against Barack Obama's absolute right to nominate a judge whose views he finds compatible with his own, but against the views themselves. That places the responsibility for appointing Constitutionally faithful judges back where it belongs - at the top. It also makes it a lot harder for our opponents to mischaracterize our arguments as mean spirited or bigoted. It's hard to see how employing the very tactics we've derided in our opponents does anything to strengthen the Republican brand (unless of course our message is "Do as we say - not as we do!").

It's not inappropriate to question Sotomayor's "wise Latina" remarks. Indeed, there are plenty of folks on both the left and the right who question her reasoning:

I think we can immediately dispense with the crazies who think this statement should disqualify Sotomayor for the Supreme Court. It's worth noting that William Rehnquist once endorsed segregation, and yet rose to be Chief Justice of the court.

That said, I think Sotomayor's statement is quite wrong. I understand the basis of it, laid out pretty well by Kerry Howley over at Hit & Run. The idea is that Latinos have a dual experience that whites don't have and that, all things being equal, they'll be able to pull from that experience and see things that whites don't. The problem with this reasoning is it implicitly accepts the logic (made for years by white racists) that there is something essential and unifying running through all white people, everywhere. But White--as we know it--is a word so big that, as a descriptor of experience, it almost doesn't exist.

Indeed, it's claims are preposterous. It seeks to lump the miner in Eastern Kentucky, the Upper West Side Jew, the yuppie in Seattle, the Irish Catholic in South Boston, the hipster in Brooklyn, the Cuban-American in Florida, or even the Mexican-American in California all together, and erase the richness of their experience, by marking the bag "White." This is a lie--and another example of how a frame invented (and for decades endorsed) by whites is, at the end of the day, bad for whites. White racism, in this country, was invented to erase the humanity and individuality of blacks. But for it to work it must, necessarily, erase the humanity of whites, too.

If people who disagree with conservatives on most issues can see the problems inherent in one size fits all racial stereotyping, surely we can make our case without resorting to over the top personal attacks. Name calling is the lazy man's approach to argumentation. It rarely convinces thoughtful or intelligent people, and those are precisely the ones we stand the greatest chance of convincing in 2010 and 2012.

But we don't stand a snowball's chance in hell of doing so if we can't make our case without beclowning ourselves or betraying our own core principles. We're being offered a priceless opportunity to discuss ideas that are vital to the future of the Republican party. We can do so in a way that enhances the party brand or we can expend our diminishing political capital fighting a battle we're unlikely to win.

The important issue here is not whether being a progressive automatically disqualifies one from serving on the Supreme Court. We didn't buy into the notion that being a conservative is an automatic disqualifier. So why should we employ such a flimsy argument against Sotomayor? Rhetorical shortcuts like this set a perilous precedent. The issue is not her political affiliation; after all it's hardly surprising that a progressive President would nominate a progressive jurist. We would nominate a conservative jurist if we controlled the White House.

What we should be questioning is, "What is the proper role of a Supreme Court judge? Should judges use their power to change the law? Or should they restrain themselves to interpreting existing laws in a manner that defers to our elected representatives and to the Constitution?"

One more question: "Isn't it a violation of the oath of office to dispense unequal justice to parties of different races?" One need look no farther than the oath Ms. Sotomayer will swear (assuming she's confirmed) to find solid ground upon which to question her judicial philosophy and - by extension - that of the President who nominated her:

According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

Or we can resort to namecalling. I leave it to you to decide which is the more persuasive tactic.

Update: Fascinating. The Sotomayor nomination may not be a slam dunk after all.

Of course it's early days, yet. But still, all the more reason to avoid self-defecating acts of beclownment.

Posted by Cassandra at May 28, 2009 08:09 AM

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Comments

Sotomajor needs to be questioned in a respectful manner and given the opportunity to explain some of her previous statements. Unless something egregious is uncovered regarding her activities and associations, she should be welcomed to the bench.

I agree with your thesis that we not be tied down by our so-called "core principles." We need, as a relevant party, to seek the middle ground with moderates of both parties. The moderate democrats have some points worthy of consideration. Leave core principles to the interpretation of the constitution. We need to consider opposing views and work toward a common goal.

We also need to stop dancing to the tune of Rahm Emanuel, et al, who are distracting us using the far left as chum in the water to stoke our feeding frenzies. Their stated goal is to not waste any emergency if it distracts us from what they are doing covertly. We must stop blazing away at diversions covering advances on the important fronts.

We have more in common with moderate democrats than we admit. The closeness of the elections proves that a sizable number of moderates from both parties need a rallying point(s) that provide the ties that bind. In short, let's start acting like Americans and not political parties. The rest will fall into place.

Posted by: vet66 at May 28, 2009 12:04 PM

In principle I am on board with you Cassandra. I am kind of busy right now, but wonder....

"One need look no farther than the oath Ms. Sotomayer will swear if confirmed to find solid ground upon which to question her judicial philosophy and - by extension - that of the President who nominated her:

According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

Or we can resort to namecalling. I leave it to you to decide which is the more persuasive tactic."

If Ms. Sotomayor fails to live up to her oath, then what? This is a lifetime appointment, and just off the top of my head I can only think of one Supreme Court Justice who has ever been impeached for anything.

(From West's Encyclopedia of American Law) In part:

Justice Chase remains the only Supreme Court justice who has ever been subjected to the procedure, and his acquittal played an important role in preventing the application of impeachment from becoming overtly political. Chase was an important and controversial member of the founding generation. A signer of the Declaration of Independence, he was combative, irascible, aggressive, and overbearing. Chase, whom President Washington appointed to the Court in 1796, nevertheless had a first‐rate legal mind and was one of the leading members of the pre–John Marshall Court. He increasingly emerged, however, as an extreme Federalist partisan who vigorously enforced the Sedition Acts, which had been passed during the administration of John Adams to allow prosecution of Republican editors and politicians, especially in the cases of Thomas Cooper, John Fries, and James T. Callender.

While Chase's judicial behavior was improper, the eventual impeachment proceedings brought against him were also highly politicized. In the election of 1800, Thomas Jefferson secured the presidency as his fellow Republicans gained control of both houses of Congress, leaving only the national judiciary in Federalist hands. Jefferson himself did not initially desire to attack the judicial department, but more radical Republicans, such as John Randolph of Virginia, did. The new president eventually came to favor the impeachment of Federalist John Pickering, a federal district court judge from New Hampshire. Pickering was both insane and alcoholic and almost certainly engaged in no intentional crime or abuse of office. He became the first federal judge in history to be impeached, convicted, and removed from office as Republican majorities agreed that English and colonial American precedent established that impeachment proceedings could be a means to remove political opponents from office.

The same day that Pickering was convicted, Randolph moved, in the House of Representatives, for impeachment proceedings against Chase. Jefferson, at first, supported this development based upon what he believed to be Chase's ongoing partisan activities from the bench. He withdrew his support, however, when it became clear that Randolph and his allies intended to go after other Federalist members of the Supreme Court, including John Marshall and William Paterson, should Chase be convicted. During the trial itself, Chase and a battery of skilled lawyers mounted a vigorous defense while Randolph, who was not a trained lawyer, botched the prosecution. The conduct of the trial, Jefferson's refusal to enforce party discipline in the final vote, and arguably the realization that a conviction would undermine separation of powers prevented the more zealous Republicans from obtaining the two‐thirds majority necessary to convict.

Chase's acquittal supported the views of those more moderate Republicans who argued that the grounds for impeachment should be either criminal or abuse of office rather than partisan. This view has prevailed down to the present. Although various lower federal court judges have been impeached, convicted, and removed from office, this has occurred only in clear‐cut cases. For members of the Supreme Court the threat of impeachment has been mainly rhetorical. Since Jefferson, all presidents and most members of Congress have generally eschewed the impeachment process as too partisan and cumbersome."

BTW, the Sedition Acts referenced sound an awful like what is happening right now in 44's reign...just a glancing observation...


Posted by: kbob in Katy at May 28, 2009 12:16 PM

My husband, who has served his country for nearly 3 decades and who has been a conservative since I met him at the age of 17, said something that really resonated with me a while back: "I don't support anyone who puts his party above his allegiance to this country."

We are supposed to be Americans first, and Democrats or Republicans second. There's room for everyone at the table.

And those on our side who don't have enough faith in our own ideas to ardently defend them without personally attacking their opponents do us no favor. But hey - I'm just one of those crybaby moderates, so what do I know? :p

The only difference I detect between myself and them is that I refuse to believe the only path to victory is for those I disagree with to shut up or sideline themselves. Competition is healthy.

Posted by: Cassandra at May 28, 2009 12:17 PM

The Blog Princess, enjoined with a VERY wise Editorial Consort.

Posted by: Boquisucio at May 28, 2009 12:24 PM

If Ms. Sotomayor fails to live up to her oath, then what?

I've never been convinced that taking isolated quotes and hyping them is a convincing rhetorical tactic. I think she should be questioned about her thinking to see if she is willing to go to the mat for the idea of racial or gender biased justice. I'll be surprised, frankly, if she defends it.

The nomination process is a grueling one. It also offers us a chance to make some important points that may eventually come to resonate with Ms. Sotomayor as well as the general public. Ideas like this *should* be debated. They're important, especially in light of America's rapidly changing demographics.

After all, it's not only conservative who drift from their original principles over time on the federal bench. These judges are weighing difficult questions, and they influence each other. That's a point we all too often forget.

I think it would be hard to impeach any justice for anything other than flagrant misconduct. Decisions we don't agree with can always be spun, but the lifetime appointment process was instituted deliberately to shield judges from political pressure. That carries risks as well as benefits but I can't think of a better system.

Posted by: Cassandra at May 28, 2009 12:24 PM

The Blog Princess, enjoined with a VERY wise Editorial Consort.

He's grown wiser over the years. Too bad he can't disavow that one bad decision in March of '79 :p

heh...

Posted by: Cassandra at May 28, 2009 12:26 PM

Republicans should of course refrain from ad hominem attacks of the sort used by Democrats against Robert Bork and Clarence Thomas. But they would be shirking their duty if they failed to press Judge Sotomayor on her questionable statements and decisions. In particular, her statements about a "wise Latina" and about courts of appeal "making policy" deserve great scrutiny, as do her actions in the New Haven firefighters case (Ricci v. DeStefano) and a decision involving eminent domain (Didden) that makes the Supreme Court's decision in Kelo look modest. The Republicans have no chance whatever of denying her a seat on the Supreme Court, but enough is already known about her judicial philosophy to justify a "no" vote on her nomination.

Posted by: TimK at May 28, 2009 12:46 PM

Agreed, Tim. Especially this part:

The Republicans have no chance whatever of denying her a seat on the Supreme Court, but enough is already known about her judicial philosophy to justify a "no" vote on her nomination.

I just hate to see us beclown ourselves the way some Senators did during the Roberts hearings. That was just plain disgusting.

This is a great forum for articulating a principled philosophy, and also to remind people of just how obnoxiously Roberts and Alito were treated. But if we climb down into the gutter, we won't have any business complaining when those things are done to conservative nominees.

Posted by: Sam I Am's Naughty Little Sister at May 28, 2009 12:54 PM

The ad hominem like racist, are used so often and by all sides, that I suspect they have lost all meaning and impact. The exception being the (equally discounted) points to be made in drawing attention to the name calling. Examples are now too numerous and too easy for it to be much of a sport, even so, with my predisposition to being a sarcastic, curmudgeonly, smart-alec, I'll have to admit that I do succumb to wagging a finger at it.

"I just hate to see us beclown ourselves the way some Senators did during the Roberts hearings. That was just plain disgusting."
So you're saying that we can't profess to be the Daddy party if/when we act like the petulant 8 year old screaming in the middle of the store? =8^{ Hmmmm.

At this time, even those of us barely paying attention must know there is plenty of material concerning Judge Sotomayor's rulings/judgment (NYTimes?!! sheesh, the places I'll dredge to find material) for conservatives to question.

*sigh*

Posted by: The-Manchurian-bubba-on-loan-from-the-Spanish-Inquisition_hun at May 28, 2009 01:42 PM

Damn.

I didn't expect that.

*running away*

Posted by: Sam I Am's Naughty Little Sister at May 28, 2009 01:46 PM

" Damn.

I didn't expect that.

*running away*"

Heheh...

Well it serves you right! I've been unable to blink since about here!

Posted by: The-unblinking-Manchurian-bubba-on-loan-from-the-Spanish-Inquisition_hun at May 28, 2009 02:06 PM

Ah, the price I've paid in departed visitors because I won't toe the line on decibel level and shrillness in rote, knee-jerk condemnation of the One.

Posted by: I really dislike sore loser whingers at May 28, 2009 03:27 PM

This was a thoroughly refreshing read. So enjoyable, that I can't think of a thing to say except to pump my girly little fist and shout "YEA! What SHE said!"

Posted by: Jewels at May 28, 2009 07:02 PM

Thank you.

You are very kind. I appreciate you guys giving me the opportunity to bounce my half baked thoughts off your huge, pulsing brains!

Posted by: Cassandra at May 28, 2009 09:28 PM

We have more in common with moderate democrats than we admit.

Exactly. Grim is a Democrat. How many people knew that? He's just a right of center one on many core issues.

Posted by: Cassandra at May 28, 2009 09:30 PM

Ah, the price I've paid in departed visitors because I won't toe the line on decibel level and shrillness in rote, knee-jerk condemnation of the One.

Dude, as much traffic as you have, I think you can spare it!

I don't care so much about traffic. Blogging isn't (at least for me) a popularity contest so much as it is a chance to discuss interesting issues with smart people who can challenge me. I enjoy the discussion, and good discussion often suffers when you get too much traffic. I've lost track of the sites where everything went to hell in a handbasket once the site took off.

That's a major reason I've killed VC off at least three times. It stops being fun when the site gets too big. But I think women also blog for different reasons. Guys tend to enjoy the competitive aspect and the food fights. I hate those things, but like the opportunity to engage in interesting discussions and get to know my readers.

That's nearly impossible on a big site. So to me, all the things I enjoy about blogging depend upon not allowing VC to have too much traffic.

Posted by: Cassandra at May 28, 2009 09:41 PM

Some day it might be fun to have a VC Fest 201X and actually get to meet the Company in person. In a well lit public area that is. Some of y'all frankly scare me. ;)

Posted by: MikeD at May 29, 2009 09:30 AM

I agree with you - that would be scary. But fun :p

Posted by: Cassandra at May 29, 2009 09:55 AM

"In a well lit public area that is."

Noooooo! The light! It burnsss usss!!
0>;~}

Posted by: DL Sly at May 29, 2009 11:13 AM

Heheh...

Posted by: The-Manchurian-bubba_hun at May 29, 2009 11:23 AM

And while I'm avoiding the task list by yammering away on the keyboard, I'll add another 2¢, adjusted for stagflation...

"The Republicans have no chance whatever of denying her a seat on the Supreme Court, but enough is already known about her judicial philosophy to justify a "no" vote on her nomination."
True, but I'm hearing that some number of those who make up the liberal wing of the Democrat party are concerned with Judge Sotomayor's position on Roe v. Wade.
"Meanwhile, liberal activists on the Daily Kos blog are already fretting that "Sotomayor is a stealth ANTI-CHOICE supreme court pick."
The natives are restless even though the likelihood of Roe being overturned is about as probable as Obama, Reid & Pelosi administering the most transparent government evah.
We have more in common with moderate democrats than we admit.

Exactly. Grim is a Democrat. How many people knew that? He's just a right of center one on many core issues."

Yup, Grim is, if I recall his postings on this topic, a Democrat. Just as Zell Miller is and my parents were life long Democrats. But IMHO, that identification is of a flavor of a Democratic ideal from decades ago.

Acknowledging that I can't speak for anyone other than myself, I will say that in light of official Democrat Party positions and the conduct of ranking Democrats these past 10 years, I have a strong suspicion that my parents could easily be persuaded to align themselves as Independents were they to see their party perform in the 21st century.

Yup, politics and the world's oldest profession have more in common than we might admit.

But I'm still fussing with my insurance company over repairs caused by hail damage to one of my vehicles, so I may just be excessively grumpy this a.m.

Posted by: The-Manchurian-bubba_hun at May 29, 2009 11:43 AM

Oh, I forgot to mention the fancy footwork that will be required for Red state Democrats finding their path amongst their constituents whilst attempting to minimize that

In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.
In spite of
"the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

The Second Amendment, the Supreme Court ruled, “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

“There seems to us no doubt,” the Supreme Court said, “that the Second Amendment conferred an individual right to keep and bear arms.”

So I suppose that my county and/or state can toss out any of the other pesky things in that dusty old Constitution/BoR they might wish...

Yeah, I thin I'm gonna have to ask my Senators and Congressman about that.

Posted by: The-Manchurian-bubba_hun at May 29, 2009 12:31 PM

I'm not totally embracing the notion that describing a person as a racist is necessarily an ad hominem attack. It certainly can be. But can't it also be an apt description?

The term isn't being injected into a vacuum. It's being used to describe specific statements and specific acts, all of which are specifically racial in nature. If one analyzes these statements and actions and comes to the conclusion that they are indeed racist, what would you have them do? Use another word?

Is the argument that those calling Sotomayor a racist haven't given her statements and actions due consideration? That they have and are lying about their conclusions? That the word racist has become so emotionally charged that it simply can't be used anymore? That its use is politically unwise?

I might buy some, or all, of those arguments. But you have to make them. Take Newt Gingrich, for example. He's a pretty savvy and calculating guy. I doubt he just tossed out the word racist without giving it some thought. So I have trouble dismissing him as resorting to cheap, reflexive name calling.

I'm still chewing on a lot of this, and I hope I'm not coming across as combative, because I'm not trying to be. The word racist is used so often and under so many definitions that it's no wonder it draws a wince response when used by someone we may generally agree with. But I think it's wrong to "reflexively" assume that it's being tossed around lightly.

Posted by: Freeven at May 30, 2009 01:07 AM

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