There are two schools of thought on the Senate’s power of advice and consent on Supreme Court nominees. One — which I support, but then-Sen. Barack Obama did not — holds that barring extraordinary circumstances, senators should go along with a president’s judicial choices.
When Senate Democrats were using the filibuster to torpedo confirmation votes of 10 of President George W. Bush’s judicial nominees, the Republican Party’s leadership threatened to bar its use to kill a judicial confirmation vote. Until 14 senators — seven Democrats and seven Republicans, dubbed the Gang of 14 — struck a deal in 2005 that resulted in five judicial confirmations and defanged the threat of using a rules change to end the judicial filibuster.
Extremism did not prevail because seven Democrats pledged to reserve the judicial filibuster for extraordinary circumstances, while seven Republicans rejected the nuclear option of permanently eliminating it.
Mr. Obama chose not to join the Gang of 14, even though he acknowledged in his memoir “The Audacity of Hope,” that because of the 14, a “crisis in the Senate was averted.” You see, Mr. Obama supported the filibuster of Bush nominees: “Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president — and benefits our democracy — to find moderate nominees who can garner some measure of bipartisan support.”
Furthermore, Mr. Obama’s idea of moderate clashed with those of the 78 senators who voted to confirm Chief Justice John G. Roberts Jr. and the 58 senators who confirmed Justice Samuel A. Alito Jr.
In the second school — the school of Mr. Obama and the moderate Sen. Dianne Feinstein, California Democrat, senators can reject an appointment to the big bench if a nominee’s viewpoints conflict with his or her judicial philosophy — and still be considered upstanding lawmakers.
Besides, with 60 Democrats in the Senate, Judge Sotomayor fails only if she alienates the Democrats. So someone tell Republican senators: Enough already with the “wise Latina” questions. Everyone knows what Judge Sotomayor meant, that she can’t admit precisely what she meant — but also that she has a history of deciding cases with a nod toward precedent. After 17 years on the federal bench, Judge Sotomayor may be liberal, but she also is a professional.
The most interesting exchange thus far occurred when Sen. Tom Coburn, Oklahoma Republican, asked Judge Sotomayor about a 2004 opinion, which she signed, that found that “the right to possess a gun is clearly not a fundamental right.”
Mr. Coburn wondered how courts cannot see the explicitly stated Second Amendment “right to keep and bear arms” as fundamental, yet can hold as fundamental the unexpressed right to privacy. Judge Sotomayor answered: “Is there a constitutional right to self-defense? And I can’t think of one. I could be wrong, but I can’t think of one.”
For eight years, Democrats attacked the Bush administration for giving short shrift to personal liberties. As Mr. Obama wrote in “Audacity,” the Bush picks “showed a pattern of hostility toward civil rights, privacy and checks on executive power.”
Now the Obama pick for the Supreme Court can’t think of a right to defend yourself. That is arguably extraordinary.
Debra J. Saunders is a nationally syndicated columnist.