Advice on Consent

National Review Online
Tuesday, May 26, 2009

Judge Sonia Sotomayor is female, Hispanic, liberal, and mediocre. Conservatives should draw attention to the third adjective while understanding that the first two are likely to be politically decisive during her confirmation hearings.

Sotomayor’s liberalism would not constitute a reason for denying her a seat on the Supreme Court if it merely consisted of a set of policy positions identical to those of the Senate’s 15 most liberal members. Unfortunately, liberalism has for some time now incorporated a tacit judicial philosophy in which the goal is to impose policies as left-wing as a judge can get away with. Sotomayor seems to march to that beat. More to the point, perhaps, she has shown no signs of marching to any other one.

Judges who decide cases in this manner abuse their office and undermine the rule of law. They also generate policies that are harmful to our economy, dangerous to our national security, and destructive to our social fabric. Liberal activism on the bench has these effects even when the offending judges are geniuses. The nominee’s approach to judging is more important than her IQ, and it is on that subject that senators ought to be trying to shed light. And they should take their time doing it. Thanks to years of activism, Supreme Court justices have more power than most senators. We should spend at least as much time learning how they would exercise it as we do for Senate candidates.

Barring some shocking revelation, we know the outcome of these hearings. Some Republicans say that we could have done worse: Given what we know of her judicial craftsmanship and temperament, she is unlikely to have influence on the Court beyond her vote. But such musings are neither here nor there. The choice for Republican senators is not between Sotomayor and some hypothetical more dangerous Obama nominee; it is between her being confirmed with their consent and her being confirmed without it.

That consent should probably not be given, and should certainly be withheld for now.