Strengthening Constitutional Self-Government

No Left Turns

Are Conservatives Losing the Battle But Winning the War?

NRO’s Jonathan Adler offers this hypothesis in his third-day wrap-up for the Washington Post:

It is almost as if [Judge Sotomayor] and her White House handlers believe that a more forthright explication of a liberal judicial philosophy – a philosophy like that articulated in her speeches and defended by the president – would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal – as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel – does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

Discussions - 6 Comments

That analysis seems to me to be spot-on. But what Sotomayor is doing with her judicial philosophy is of a piece with what Obama does with his political philosophy (if I may use the term "philosophy" loosely). This is what Liberals have been doing in American politics for as long as I can remember and probably longer. It's just that political conservatives have almost never been able intelligently to dissect what Liberals say when the Liberal begins to obfuscate. Most conservatives think it is enough, somehow, to shout "Liberal!" and they forget that this tag doesn't carry the meaning it once used to do with most Americans. Part of the problem is that it was a stupid concession on the part of American conservatives to let "Liberals" get away with calling themselves that in the first place--since so much of what they believe is not "liberal" (as in freedom promoting) at all. But I digress . . .

This would have been clearly true if the minority party hadn't invited Ricci and Vargas. In general, it is now harder for the heirs of William O Douglas to get confirmed today than the heirs of James McReynolds.

But putting those directly affected by a nominee's decisions in a position to articulate their responses - in their own voice - is in tension with the notion of the law as a neutral arbiter, for which personal feelings and the effect of future policy are essentially irrelevant. The subtext is instead: the feelings of litigants are very relevant and should influence the court's actions.

Now that this threshold has been crossed, future Lilly Ledbetters and Ben Vargasses may be fixtures of nomination hearings. It's a triumph of empathy, actually.

There IS little support for liberal views in general- people voted (stupidly) against Bush and the 'corruption' of the Republicans and the liberal Democrats mistook that as a mandate. It is up to YOU next election to vote correctly this time, and throw these liberals out on the street before they destroy America forever.

Brett makes a nice point. Usually fear is the primary mechanism of spectacle control by republicans. But oppressed White-guy subjectivity continues the right wing victimhood parade. Maybe they were still trying to milk the 9/11 firefighter - hero motif. Partially born fetus dolls will be next.


Just because a nominee who hasn't been careful in the past now needs to start lying doesn't mean we're winning the war -- whether you define that war as political or wholly intellectual.

What is new about this vanilla confirmation testimony? The fact Obama is a centrist who continually tries to prove it (e.g., Rick Warren) is not news.

The senators themselves promoted liberal jurisprudence. The nominee (to the degree that her "wise Latina" comment was liberal ... conservatives can say something comparable about making sure religious right people are on the court) has views that did not suddenly disappear because of the vanilla hearings.

The "wise Latina" still will be a justice. BTW, she still said her experiences etc. will help her "understand" while judging. Some victory.

Dawn Johnsen is not about judicial nominations, but you have a better case there. Personally, given Obama's policies secrecy and preventive detention, you'd almost think that it is Obama's own insiders that have problems with DJ, not the Senate.

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