[Judge Sotomayor's] nearly two-decade record has yielded few decisions that Republicans can exploit.
Now, if we go back 22 years, to Ronald Reagan's nomination of Judge Robert Bork to the US Supreme Court, the Democratic Party, led by Sen. Edward Kennedy, had plenty of rhetorical, philosophical, and judicial ammunition to use against the nominee. In retrospect, some of the comments from Kennedy, especially those made prior to the hearings, were both over the top and inflammatory. Yet, Kennedy and other Democrats had the advantage that Bork not only had a judicial record that can only be called extreme. He also had a publishing and speaking record that could also only be called extreme. His position on the role of the judiciary, on law in society, could hardly be called a model of judicial restraint. On the contrary, he saw the law as reflective of a particular set of social values (which is true, as far as it goes) that can be used to construct certain desirable social and cultural ends (which may or may not be true). Judicial restrain, the hobgoblin of conservatives since the Warren Court of the 1950's, is a truly conservative legal approach; it is respect for precedent, the refusal to use a law, or legal or Constitutional principle, for anything other than the stated goal contained within the plain text. While this or that social or cultural end may be desirable, it is not the business of the law to do what the democratic process has failed to do. Thus, judges should be about making sure the law is applied today as it was applied yesterday.
Bork's position - and, I should add, Chief Justice Robert's, and Associate Justice's Scalia's and Alito's as well - is that the law should be a tool for social and cultural control. The social status quo is a good worthy to be protected; our traditional values are a good worthy to be protected; a legal or Constitutional principle that does not have some basis in a particular reading of the text of the Constitution can be destructive of the social contract as it exists, to the extent that it threatens the power structure that upholds society. While one could argue that this is certainly "conservative" in the sense that it is an approach to the law that sees it as a bulwark against unwanted, unnecessary, innovation that could threaten social stability, it is actually a kind of reactionary view of the law.
Judge Sotomayor continues to insist that, if one of the Senators on the panel wants to know what kind of Justice she would be, to look at her record. They want to know what her judicial philosophy is. John Cornyn of Texas wants, for a reason known only to him, to reconcile her judicial record and her public pronouncements. The reason for this need for reconciliation should be clear to anyone with more than a few brain cells to rub together, yet seems to have escaped the keen intellect of the junior Senator from Texas - Judge Sotomayor's record, including her public pronouncements and speeches, is reflective of her judicial record to the extent that, in keeping with the best of American traditions, she sees the law as a sometimes positive good, sometimes obstacle to be overcome, but the glue that holds our society together. Our social contract is rooted not in this or that principle, whether it be something called Judeo-Christian values or something else. Adherence to some a priori set of principles or philosophy only distorts the reality that, in the end, what binds us together as Americans is the rule of law, passed by Congress, interpreted and applied by judges, whether they are a local traffic cop or a Supreme Court justice.
The other problem the Republicans are having is the reality that Judge Sotomayor isn't the radical bogeyman - Pat Buchanan's racist Latina woman - that public rhetoric has created. Hardly a judicial radical, she observes time-honored principles of respect for precedent and the careful application of those principles to cases. Even in the much-talked-about Ricci case, she was only applying a previously existing Supreme Court legal standard to a set of facts. It was the Supreme Court that changed that set of standards when it overturned her decision, not Judge Sotomayor who somehow was coming to the aid of privileged minorities trying to stick it to whitey.
In the end, Judge Sotomayor will be confirmed. The net result for the Republicans, at least those who have been most outspoken on the Judiciary Committee, will be they will look like what they are, tired old white men attempting to set up and knock down a caricature of a radical activist judge who doesn't exist. They are the last vestiges of a dying social and cultural elite, the last remnants of a power structure that not only no longer exists, but far outlived its usefulness decades ago. That the Republicans put a person with the racist record of Jeff Sessions as the point-man in this process should tell anyone with a modicum of sense all they need to know about who they are, what they are defending, and how much better Judge Sotomayor will look because of it.
