Though Cowards Flinch

The ritual that is the modern Senate Judiciary Committee confirmation having come to a close, it appears all but certain that Sonia Maria Sotomayor will be the next Associate Justice of the United States Supreme Court. With every Justice appointed to the bench, there are both long term and short term victories and goals to consider. So, who fulfilled theirs?

Obama – President Obama, as he appears to have structured his goals (and that’s important) definitely won.  What were his goals?  It seems very clear that Mr. Obama’s goals are to pass his healthcare legislation.  All other matters, even Supreme Court nominees are secondary.  His pick of Sotomayor, who appears to be in line with his moderate, pragmatic constitutional views, is doubly a better choice for him because of her ease of confirmation.  Avoiding what could be a protracted Senate battle early in his term, when he wants to pass healthcare bill, he gets a Justice with a quick confirmation, and hopefully little distraction from healthcare.

By the standards President Obama has set, he won on both counts.

The Democratic Party

I think the Democratic Party’s legal goals are a little more long-term than Obama’s (yes, yes, healthcare is a long-term goal), in that the Democratic Party has struggled to find a clear and articulate voice for its legal ideology/method/whatever. Scalia’s originalism and his wry quips appeal more popularly than the more bookish Justices who have tried to come up with a similar legal viewpoint (I’m thinking of you, Justice Breyer’s Active Liberty). 

And although originalism has perhaps morphed to “original understanding” from “original intent of the Founders,” it has bred a vibrant ideological base in the Federalist society.

From Chief Justice Roberts’s and Justice Alito’s confirmation hearings, much of the Democratic Party appears to have embraced this “umpire” model of judicial decision-making — the umpire calls balls and strikes.  While idealistic, it’s clearly at best an inapt metaphor.  Perhaps a better metaphor would be it’s like having a couple hundred umpires, who watch tens of thousands of pitches a year, where three of them watch a pitch at the same time, and instead of calling “ball” or “strike” write dozens of pages of decisions, concurrences and dissents, a few decisions of which are then reviewed by a larger panel of umpires, who similarly write, or perhaps are directly reviewed by a panel of nine umpires, who get the final say. And that’s not even getting involved in District Courts or State systems (I could see having fun with the metaphor of baseball played 50 different odd ways, where it’s all “baseball” in the end, but with slightly different rules, but I digress).

Baseball would be a lot more fun that way.

From the beginning of legal realism in the early part of the 20th century, many political scientists and legal scholars alike have recognized that something other than legal formalism guides judicial decision-making.  Democrats had the opportunity, as has been pointed out fantastically by Dahlia Lithwick, to articulate a coherent legal theory.  They didn’t.  And many of them accepted this idealistic formalism of Chief Justice Roberts.

If the goal of the Democrats was to nominate a William Brennan, Jr. or a Thurgood Marshall, and reject the “umpire” theory of legal formalism, then they failed.  If their goal was as Obama’s, to nominate a moderate and get healthcare legislation passed, then they won.

The Republican Party

The Republican Party got a lot from this round, but they may have lost the next battle.

As much as this was a battle over Sotomayor, it was far more a battle over the next Supreme Court nominee.   Obama may get another nominee during his present Presidential term, with Justice Stevens at 89.  If he gets another term, by 2016, Justice Stevens will be 96, Scalia will be 80, Kennedy 80, Ginsburg 83, and Breyer 77.

Republicans won the battle of how to frame a nominee, as Sotomayor characterized the act of rendering a judicial decision with the same formalism of Chief Justice Roberts.

But having won, most of them look like they’re going to vote against her.  It’s a poor political tactic.  Obama nominated a moderate, who followed Roberts’s “umpire” understanding of judicial decision-making.  By voting against Judge Sotomayor, Senate Republicans are handing the President a powerful weapon — by voting against a moderate, Obama can say, with justification, that Senate republicans will vote against anyone he nominates.  Next time around, if Obama chose to spend some more political capital and nominated someone who appeared less moderate, and Republicans kicked up a stink, Obama could state that Republicans would vote against anyone, and that this Judge was no less moderate than Sotomayor, presuming that that nominee kow-towed to the “umpire” style of decision-making during confirmation hearings.  Now if that Judge expounded on their political beliefs a la Bork (okay, maybe not a la Bork, but more than Sotomayor did), it could be a different story.

Now, many Republicans have said they support Judge Sotomayor, think she is an able jurist, etc., etc., even though they are voting against her, so it’s not a terribly potent weapon they are handing Obama, but it is a weapon.  And for those Senators who hope to win elections in constituencies with large Hispanic populations (I’m looking at you, Senators Kyl (R-Arizona) and Cornyn (R-Texas)), their vote is going to hurt them, no matter how many supportive things they say.