David Frum caused eyebrows everywhere to rise by making the counterintuitive claim that the nomination of the very liberal Sonia Sotomayor to the Supreme Court is perhaps the best thing that could have happened for conservatives. His reasoning, however, makes sense:
On the other hand, here's the possible good news in the Sotomayor nomination. A conservative legalist friend notes that the all-important 5th vote on the Supreme Court is Justice Anthony Kennedy's. The Reagan-appointed Kennedy has drifted to the left in recent years - in part (it's gossiped) because of his negative reactions to the brilliant but sometimes acerbic Antonin Scalia.
Having lost in 2008, Republicans had no hope of a conservative or even a moderate judicial nominee. What we should therefore be hoping for, my friend continues, is the most personally obnoxious liberal, someone certain to offend and irritate Kennedy - and push him careening back rightward. For this reason, the politic Elena Kagan would be the very worst pick from a conservative point of view. As dean of Harvard Law School, she proved herself adept at wooing conservative support. By contrast, if Jeffrey Rosen's reporting is correct, Sotomayor was almost unanimously disliked by her colleagues on the Second Circuit and even more by their clerks. And she's unlikely to gain humility from this latest promotion... so who could be better?
This is interesting, but there's really no need to find out whether Frum is correct, since the GOP could easily block Ms Sotomayor's appointment. In order to get a nominee to the full Senate for a confirmation vote the Senate Judiciary committee has to give her ten votes, at least one of which has to be from the minority party. With Senator Specter having defected to the Democrats the remaining Republicans could, if they had the resolve, refuse to give that vote to Sotomayor, just as Democrats bottled up numerous Bush appointees to the federal bench and just as many of them voted against John Roberts and Samuel Alito in the full Senate.
It is one of the ironies of politics that Senator Obama, having declared Roberts and Alito both qualified, legally and temperamentally, to serve on the SCOTUS, nevertheless voted against both and led the filibuster against Alito. Now that he's nominated a woman who gives us good reason to doubt her temperament, Republicans are being warned by such as Senator Schumer that they better not oppose her.
Actually, given Sotomayor's judicial philosophy they should, but given the GOP fear of alienating minority groups, they probably won't.
It's remarkable that Democrats had no qualms about savaging Clarence Thomas, Condaleeza Rice, Miguel Estrada, or Alberto Gonzalez, nor did they pay a political price for doing so, but Republican knees turn to jelly at the thought of losing votes they don't have anyway by opposing a Hispanic woman who believes that the role of the judge is to usurp the role of the legislature by making policy. If Republicans don't block Sotomayor it'll be a good example of the GOP's willingness to sacrifice principle to politics and another reason why they languish in the minority in Congress.
RLC