FROM POLITICS DAILY:
This may surprise faithful readers, but I may have a contrarian view about what the confirmation vote of Sonia Sotomayor means -- or more to the point, what the votes against confirmation mean. Instead of the pablum we're being fed, we should demand a healthy dish of judicial activism.
With 60 Democrats providing a solid wall against "no" votes, she'll get in. She could have mumbled her answers during the confirmation hearings and it would have been a done deal.
The bulk of the Republicans, all but nine of them voted "No", based their opposition on charges about her judicial activism. Just like the minority Democrats who unsuccessfully tried to turn away President Bush nominees John Roberts and Samuel Alito. In all three cases, the wannabe justices made elaborate pretenses that they were legal automatons, with no ideology to guide them on the bench.
Most of the conventional thinkers say that such hokum means presidents will hereafter seek safe jurists. Here is the unconventional thinking (is "demented" a better word?):
Since almost everyone in the Senate is going to follow party lines anyway, why bother even pretending the nominee has not and never will stray from the middle of the road. Why would we even want someone like that? Shouldn't he or she be honest about his or particular brand of judicial activism?
Wouldn't that be a welcome relief, with the added advantage of not being such a bold-faced lie? If you want proof, look at the voting records of Roberts and Alito, who are confirming every suspicion they were bedrock conservatives.
On the other side, Thurgood Marshall was one of our greatest justices. We had a clear idea where he stood on the active role of the judiciary when it came to the great social issues. As an attorney, he had made the arguments before this same Supreme Court that led to the unanimous, precedent-shattering Brown v. Board of Education ruling. They don't get more "activist" than that one.
Even the surprises make the point: David Souter, the jurist that Sotomayor replaces, startled the daylights out of everyone with his record. And President Eisenhower called Earl Warren his "biggest mistake." Who knew he would preside over some of the most far-reaching decisions in our history? Ike sure didn't. Shouldn't he have known? Shouldn't Bush the First have known what he was getting in Souter?
Today the subterfuge has been refined. We haven't had a fun confirmation hearing since Clarence Thomas's, and that came out of nowhere. Normally, confirmation hearings are designed to be as boring as possible, to keep people in the dark, not shed light. The prospective justice has been thoroughly prepared to hide any glimmer of insight into what he or she thinks. It's silly. The votes will largely follow party lines, no matter what.
So why not go for the wild ideologues? Presidents should name a person who makes no bones about his or her plans to take the country in one direction or the other once the robes go on.
We'll soon find out what a "wise Latina woman" named Sonia Sotomayor brings to the bench, propelled by a highly partisan Senate vote. It will certainly be something other than the bland mush she dished out on TV. At least, we'd better hope so.