Just A Numbers Game

It doesn’t matter that Judge Sotomayor said something that may or may not have suggested a belief that Latina judges are smarter than white male judges. It’s doesn’t matter because the Democrats are going to have sixty votes in the Senate.

It’s pretty simple, really. The Democrats won. Getting to pick and force through Justices to the Supreme Court of your liking is part of the spoils of victory when you win a commanding political majority in both houses of Congress and the White House.

Hey, Republicans! If you want to get more Justices like Sam Alito and Antonin Scalia and John Roberts and Clarence Thomas on the bench of the highest court in the land, I’ll tell you how to do it. Get a Republican elected President. Get a majority of Republicans elected to the Senate. When you had control of the government, you could run guys like Alito through and you could tell the Democrats to suck it. Now, you lost, and these are the consequences of losing.

Fact is, there is no principled reason for any Senator not to confirm Judge Sotomayor, at least not based on what we know about her now. I’ve read a few of her opinions and they’re intellectually solid, well-researched, and do not use any wild or even particularly sketchy reasoning. I don’t agree with all of them but that’s not really the point — the point is that in terms of ability to handle the kinds of cases the Supreme Court will address in the future, she’s got the scholarly and intellectual chops needed to get the job done.

Not that anyone in the Senate has to be principled about their vote. “She’s just too liberal” or “My party said vote ‘no'” are reasons to vote against her confirmation which are permitted by the Constitution. The only check on a Senator’s vote is fear of political reprisal should his or her constituents wish a contrary vote, and I’m pretty sure that you don’t get to the U.S. Senate without having some ability to sense how a majority of voters in your state are going to feel about big issues like this.

Now, my undergraduate thesis was about the Supreme Court nomination process and I think I remember a thing or two from that research even today. The most remarkable thing about the confirmation process is the degree to which politicians obfuscate their true meanings by using code words. Both Democrats and Republicans use some code words in their propaganda, and I’ll translate them into plain English for you here. If some of these words and phrases sound familiar, you probably remember them from other confirmation hearings such as Samuel Alito, Stephen Breyer, Samuel Alito, Ruth Bader Ginsburg, Clarence Thomas, and most of all, Robert Bork.

Code Words Democratic Translation Republican Translation
“Respect for Constitutional Balance of Powers” Congress can do anything it wants President can do anything he wants
“Strict Construction” Vote to reverse Roe v. Wade
“Living Constitution Theory” Vote to uphold Roe v. Wade
“Empathy” Vote against big corporations and law enforcement Vote in favor of terrorists, illegal immigrants, and homeless
“Judicial Activist” Like Scalia, except liberal Vote to uphold Roe v. Wade
“Judicial Restraint” Phrase not understood by Democrats Vote to reverse Roe v. Wade
“Respect for Precedent” Vote to uphold Roe v. Wade Vote to reverse Roe v. Wade
“Appropriate Respect for Individual Rights” Vote against big corporations and law enforcement Vote in favor of terrorists, illegal immigrants, and homeless
“Appreciates Importance of Religion and/or Moral Values” Vote against big corporations and law enforcement Will disregard concept of separation of church and state
“Commerce Clause” Federal government can do anything it wants
“Federalism” Obstruct necessary social welfare laws Will vote to reverse Roe v. Wade
“Affirmative Action” Cement Latino votes for Democrats Not intellectualy qualified
“National Security” Torture Deference to the President
“Unitary Executive” President can do anything he wants Deference to the President; see also “Judicial Restraint” and “Strict Construction”
“Create New Rights” 1) Will vote to uphold Roe v. Wade; 2) gay marriage (recent addition)
“Judicial Demeanor” Acting like an asshole on the bench Deference to the President
“Intellectual Qualifications” Vote to uphold Roe v. Wade Vote to reverse Roe v. Wade
“Personal Background” described as “Rich,” “Diverse,” or “Remarkable” Vote against big corporations and law enforcement
“Well-Established Precedent” Vote to uphold Roe v. Wade Vote to reverse Roe v. Wade
“Temperament” Yeah, she’s kind of a bully. But conservatives deserve a “taste of Scalia” after all these years. We got nothing
And the nominee will also be frustrating and unlikely to speak clearly and directly, either. Every time she is asked a hard question, she will respond as follows:

“Senator, the canons of judicial ethics restrict me from pre-judging any cases that might possibly come before me, either in my current role on the Court of Appeals or which might come before me if I am confirmed to the Supreme Court. Therefore, I cannot answer your question. Perhaps if you addressed a broader issue of my judicial philosophy rather than the sort of issue that I might be asked to rule upon, I could provide you with an answer that would assist you and your colleagues on the Judiciary Committee.”

This also has a plain-English translation:

“Senator, we both know that you’ve already decided how you think I’m going to vote on the next big abortion case, and chances are, you’re exactly right. But you’re in the minority party, so your opinion on that issue isn’t all that important. So why don’t you go and suck it?”

The President may weigh in from time to time:

“Sonia Sotomayor is a uniquely well-qualified candidate who belongs on the Supreme Court. I urge the Senate to complete its hearings and schedule an up-or-down vote at the earliest possible date. I’m confident that when they do, Judge Sotomayor will be confirmed.”

Which translates as follows:

“Toe the party line, bitches. Now.”

So there you have it. That’s how the nomination process goes. What it comes down to is this — the Republicans have 40 members of the Senate. At least 5 of them cannot fall back on “party line” as an excuse to not vote to confirm Judge Sotomayor. The Democrats have 59 votes now and are likely to have their 60th before the vote takes place. Unless a major scandal erupts during her personal background investigation, not a single one of those 60 Democrats will be able to find any political cover should they fail to vote to confirm her.

So unless it turns out she killed a guy back in law school or something like that, she’s as good as on the Court already.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. I like your translation grid and I think your analysis on how the Sotomayor confirmation hearings will proceed is spot on.

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