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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Sonia Sotomayor and Harriet Miers

Ramesh Ponnuru is one of the smartest conservatives around, so it’s of more than passing interest to see (via Jason Zingerle) that his initial three-word take at The Corner on the nomination of Sonia Sotomayor was: “Obama’s Harriet Miers.”
Now maybe all Ponnuru means by that is that Sotomayor’s gender and ethnicity were factors in her nomination; some observers thought Bush picked Miers primarily because she was a woman (rather than because she was a slavishly loyal personal retainer to Bush, much like the un-confirmable Alberto Gonzales).
Beyond that, any comparison becomes rather ludicrous. Miers literally came out of nowhere when she was nominated by Bush; there were plenty of other conservative women available with judicial or academic backgrounds, and Miers was not even mentioned on most short lists. She was a tort lawyer who had worked for Bush for quite some time; her big credential was being elected president of the State Bar of Texas while in private practice. Sotomayer has been a federal judge since 1991, after work both in private practice and as a prosecutor in one of the most visible jurisdictions in the country. She’s been at the top of everybody’s short-list from the moment Justice Souter announced his retirement.
But that’s not what makes the comparison–implying the vain hope that Sotomayor, like Miers, will eventually have to withdraw–so silly. The conservative legal activists who forced Bush to drop Miers may have mentioned her lack of credentials on occasion, but their real beef with her was the lack of any judicial or academic paper-trail that could have firmly established her views on key constitutional issues, and most notably Roe v. Wade. Having been burned badly by Bush’s father with the choice of David Souter, and arguably by their idol Ronald Reagan with Sandra Day O’Conner and Anthony Kennedy, conservatives were in no mood to trust Bush’s word for it that Miers would serve as a reliable vote on the Court. (For a good account of conservative legal strategy in recent years, see Jeffrey Toobin’s fine book, The Nine).
None of these considerations are in the least bit relevant to the Sotomayor nomination, aside from the fact that her credentials are vastly more impressive than were those of Miers (and the fact that no one, actually, is saying she’s not smart or able enough to serve on the Supreme Court; her anonymous detractors in a single magazine article were simply saying she’s no William Brennan capable of waging high-toned constitutional battles with the conservative bloc on the Court. This point was made today by the author of said article, who urged her confirmation).
This is all so obvious that maybe we’ll soon stop hearing about Miers Redux. But in truth, the case against Sotomayor is pretty threadbare, aside from basic disagreement on judicial philosophy. Lots of conservatives are leaping on a comment she made in a speech referring to the Court of Appeals as “where policy is made.” It’s pretty clear from the context of the quote that she was talking about the relative importance of the Courts of Appeal, as opposed to District Courts or even SCOTUS, as the source of federal legal precedent, not about judicial versus legislative authority (as her jocular disclaimer of any advocacy for the belief that judges “make law” should show).
I guess conservatives are playing the hand they’ve been dealt, but as I (and many others) have already noted, they may be playing with fire in casting around so widely for reasons to oppose the first Latina Supreme Court nominee.
UPCATEGORY: Democratic Strategist

A case against Sotomayor based on her “credentials” or “intelligence” is false on its face–this is a kind of Southern Strategy all over again. By stoking white resentment over the rise of allegedly unqualified minorities getting prominent positions, the GOP is hoping to derail her nomination. It probably won’t work, but it’s another sign of how little the GOP learned from last year’s election.

In other words, Republicans still seem to think the Joe the Plumber constituency is the key swing vote in American politics–even though Joe himself has noisily left the GOP.

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