- The Washington Times - Wednesday, May 27, 2009

ANALYSIS/OPINION:

COMMENTARY:

It had all become too much. After three days spent fending off Senate Democrats’ relentless badgering, including insinuations that he was racist, anti-woman and a liar, Samuel A. Alito Jr., President George W. Bush’s nominee to the Supreme Court, was asked directly by Republican Sen. Lindsey Graham, South Carolina Republican, “Are you a bigot?” Justice Alito responded, “I’m not any kind of bigot.”

It was then that Martha-Ann Alito, the nominee’s wife, burst into tears and promptly exited the room, creating the most indelible memory of her husband’s confirmation hearings.

The incendiary personal attacks employed by Democrats against Justice Alito were shameful, and they backfired by making Democrats look like bullies against an honorable man and well-qualified nominee. However, they also were an indication that Democrats, out of power and with little prospect of preventing Justice Alito’s confirmation, were at least willing to put up a fight and scrutinize the nominee.

With news that President Obama has nominated U.S. 2nd Circuit Appeals Court Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter, there already has been chatter about what sort of a justice Judge Sotomayor would be.

There is little question that Judge Sotomayor would align with the court’s three remaining left-wing justices. Nearly everyone agrees she will be confirmed by a Democratic Senate with a filibuster-proof majority.

Given these uneasy facts, some Senate Republicans may be tempted to allow Judge Sotomayor to be confirmed without much scrutiny. They should resist that temptation. Senators have a constitutional duty to advise and consent to the appointment of judges, and Republican senators have an obligation to scrutinize the nominee’s judicial record and philosophy.

There was a time when presidents were afforded considerable deference in appointing judges. Barring some moral character flaw, a nominee’s judicial competency generally was the only yardstick used to determine whether a judge was suitable for the high court.

Times have changed. With many judges acting as legislators, a prospective justice’s judicial philosophy has become ascendant. Televised confirmation hearings offer Republicans a rare chance to inform the public about what judges are supposed to do and to make the case for judicial restraint.

If Judge Sotomayor thinks the words “under God” in the Pledge of Allegiance violate the Constitution, the public needs to know that. If she believes unborn children do not deserve constitutional recognition, that ought to be made clear. If the nominee has an affinity for quoting foreign law in justifying decisions that are supposed to be based on the U.S. Constitution, Americans should know. And if Judge Sotomayor believes in a hitherto undiscovered right for same-sex couples to marry, even though the voters of 30 states have considered the question and soundly voted it down, that view ought to be exposed.

Mr. Obama has told us what kind of judges he is seeking: judges who feel unconstrained by the plain language of the law or the text of the Constitution, judges who instead will act on their “empathy,” on their own sense of right and wrong. He wants judges who will legislate from the bench. That is the very definition of judicial activism.

It’s unsurprising then that Mr. Obama has nominated Judge Sotomayor, who has said our courts are “where policy is made.” In a 2002 speech at Berkeley, she suggested that justice might be better determined by some races than others, saying, “I would hope that a wise Latino woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Empathy is a virtue, but it should not be a guiding judicial principle. Most Americans agree. According to a Rasmussen poll, 60 percent of Americans surveyed said judges should rule based on the written text of the law, while just 30 percent said judges’ rulings should be based on their sense of “empathy.”

Democrats will berate Republicans for principled opposition to Judge Sotomayor, but Mr. Obama himself once advocated for scrutiny of nominees’ judicial philosophy. During Justice Alito’s confirmation hearings, then-Sen. Barack Obama said:

“There are some who believe that the president, having won the election, should have the complete authority to appoint his nominee…. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.” Republican senators should heed Mr. Obama’s advice.

By nominating Sonia Sotomayor, Mr. Obama demonstrated that he has little intention of following through on his campaign promises of bipartisanship. Republicans should make it known publicly that Mr. Obama has, once again, put liberal ideology ahead of the country. That can happen only if Republicans fight.

Gary Bauer is president of American Values and chairman of Campaign for Working Families. He was chairman of the Citizens Committee to Confirm Clarence Thomas.


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