Republicans' Latest "New" Strategy on Sotomayor Is Another Loser

After initially describing Judge Sonia Sotomayor as a racist, intellectual lightweight, and a judicial fireball, Republicans have struggled to find a consistent and workable strategy to oppose her without causing serious political damage to the GOP. Opinion polls continue to show that a majority of the public supports Sotomayor's nomination to the Supreme Court. More ominously for Republicans, polls also find that Latinos overwhelmingly support Sotomayor's prospective appointment.

Moreover, assuming the accuracy of a recent Daily Kos/Research 2000 poll, Latino support for the GOP has declined from an already abysmal level since conservatives began attacking Sotomayor. The poll indicates that only blacks have a lower opinion of the Republican Party than Latinos. Just 3% of blacks and 8% of Latinos view the party favorably, while 31% of whites hold a favorable opinion of the GOP. If the situation does not improve for Republicans, Obama will win the presidency again, and Congressional Democrats will perform well in midterm elections.

The Republicans' Evolving "Sonia Strategy"
Because the Republicans' early attacks on Sotomayor failed, they have repeatedly attempted to retool their approaches. For example, Senate Republicans have distanced themselves from statements by conservatives, like Rush Limbaugh and Newt Gingrich, which described Sotomayor as a racist. Some of them have also described personal meetings with Sotomayor in positive terms. Furthermore, several Senate Republicans have emphasized the need to scrutinize her judicial record, rather than focusing on snippets of text from speeches she has delivered.

Now, with Sotomayor's confirmation hearings scheduled to begin on July 13, Republicans have possibly finalized their strategy. According to the Associated Press, Republicans will question Sotomayor regarding her "commitment" to the Second Amendment, property rights, and equal protection. While a focus on legal issues would represent an improvement over earlier discourse surrounding Sotomayor, this tactic will likely fail to raise any serious questions regarding Sotomayor's fitness for the Supreme Court or any major political opposition to her nomination.

Sotomayor's Judicial Record Does Not Warrant Opposition to Her Nomination
The new Republican strategy will likely fail because Sotomayor's judicial record does not warrant opposition to her nomination. Sotomayor has served as a federal judge without controversy for fifteen years. If she were an incompetent ideologue who did not care about the Constitution, a public record documenting this narrative would already exist. Accordingly, Republicans will have to make strained arguments as they try to raise questions about Sotomayor's commitment to the Constitution (which is an ambiguous concept).

Furthermore, the specific issues that Republicans have isolated as potentially raising questions about Sotomayor (the right to bear arms, property rights, and equal protection) do not present any real problems when viewed with intellectual honesty and nonpartisanship.

Specific Issue: Right to Bear Arms
Conservatives have already attempted to portray Sotomayor as a judge who does not respect the right to bear arms. They specifically cite an opinion issued by a 3-judge panel of the Second Circuit (Sotomayor sat on the panel) which concludes that the Second Amendment does not create an "individual" right to bear arms, but that it empowers "states" to establish militias. Although conservatives and pro-gun organizations and individuals oppose this conclusion, legal historians, judges, and legal scholars have debated this specific question for over a century.

Last year, the Supreme Court finally resolved this debate with its ruling in District of Columbia v. Heller. In a very divided, 5-4 opinion, the Court found that the Second Amendment creates an "individual" (rather than a "state") right. Nevertheless, the fact that four sitting justices on the Supreme Court reached the same conclusion as the Second Circuit panel means that Sotomayor's acceptance of the state right position cannot make her unfit for a position on the Supreme Court.

Subsequent to the Heller decision, another 3-judge panel of the Second Circuit, which included Sotomayor, held that the Second Amendment only constrains the federal government, not state governments, and that outside of the Second Amendment, the Constitution does not secure a "fundamental right" to bear arms. Conservatives have engaged in extreme distortion and hypocrisy in their critiques of this ruling.

It is abundantly clear that the specific liberty interests contained in the Bill of Rights were created to limit the federal government -- not the states. This has been the uninterrupted doctrine of the Supreme Court since the 1833 ruling in Barron v. Baltimore. Also, the text of the Bill of Rights supports this conclusion. The First Amendment, for example, explicitly prohibits "Congress" (not the states) from impairing freedom of speech and religion. Furthermore, the Bill of Rights was proposed and ratified because anti-federalists feared that the proposed Constitution, which would significantly expand federal power, would permit the national government to abuse individual liberty. The Bill of Rights served as a political compromise designed to secure ratification of the Constitution in light of strong dissent in several states.

Despite this clear history -- and conservative rhetoric about the virtues of following original intent -- Sotomayor's opponents have criticized her for agreeing that the Second Amendment only constrains the national government. The Supreme Court has, on a case by case basis, concluded that many of the rights contained in the Bill of Rights are "incorporated" by the Due Process Clause of the Fourteenth Amendment -- which makes them enforceable against the states. Neither the text nor the history surrounding the Fourteenth Amendment, however, supports this conclusion. Also, most of the Supreme Court rulings that expanded rights through incorporation were issued by the Warren Court, which many conservatives believe symbolizes the horrors of "liberal" "judicial activism." Nevertheless, conservatives fault Sotomayor for declining to emulate the Warren Court and conclude that the Second Amendment is an incorporated right.

Conservative opposition to the Second Circuit ruling is even more problematic in light of the fact that it strictly follows existing Supreme Court precedent which holds that the Second Amendment is not incorporated. Although this case law is dated, it is still "good law." Finally, a panel of three well respected conservative judges in the Seventh Circuit recently followed the lead of the Second Circuit and refused to hold that the Second Amendment is incorporated. The conservative Seventh Circuit ruling specifically cites the Second Circuit decision that conservatives have sued to brand Sotomayor as a dangerous opponent of gun rights.

Remaining Issues and the "Real Deal"
The other issues that Republicans plan to use in their "Sonia Strategy" have been dissected elsewhere. The constitutional law blog Text and History, for example, offers an erudite two-part analysis that powerfully rebuts conservative efforts to portray Sotomayor as hostile to property rights. Many other blogs, including Dissenting Justice, have addressed Sotomayor's case law and personal opinions regarding race and sex.

Despite the foregoing legal analysis, politics probably explains better than anything else why the Republicans' latest Sonia Strategy will not work. Democrats control the Senate. The public supports Sotomayor. Senate Democrats will support Obama on this issue. Barring any unexpected developments, this case is almost closed.

For an extensive listing of links to commentary regarding Sotomayor on Dissenting Justice, CLICK HERE.

Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)

I have previously argued that "judicial activism" is a bankrupt phrase. Rather than referring to any particular theory of judging, the judicial activism label is simply politically charged rhetoric that groups or individuals invoke to condemn court rulings with which they disagree. Conservative opposition to elements of Sotomayor's rulings proves this point.

Voting Rights for Felons
Recently, the Washington Times published an editorial that attempts to portray Sotomayor as an extremist who wants to give felons the right to vote. The editorial discusses her dissenting opinion in Hayden v. Pataki. In Hayden, the plaintiffs asserted that New York State systematically deprived blacks and Latinos of the right to vote by denying the franchise to incarcerated felons. The plaintiffs argued that New York's election law violates Section Two of the Voting Rights Act, which prohibits "any" policy that dilutes a racial group's votes. The plain meaning of the statute made it applicable in Hayden, but the majority explicitly looked beyond the statutory language to deny the statute's relevance and to dismiss the case.

Arch-conservative Justice Scalia is probably best known for his statutory interpretation jurisprudence which strongly condemns judges who look beyond the "plain meaning" of statutes and consult legislative history and other external sources. Sotomayor, echoing Scalia, grounded her dissent in the language of judicial restraint:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . [I]f Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to [the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

It is unclear whether New York's election laws actually dilute the votes of blacks and Latinos, but the court had to consider this as a "fact" at the particular stage of the litigation in which it issued a ruling. The only question the court considered was the applicability of the Voting Rights Act, and it actively explored external sources to reach its conclusion that the law was not applicable (See here for a discussion of Hayden and conservative flip-flopping).

Sotomayor Wants Your Guns
The latest story to spread fear and loathing through conservative America depicts Sotomayor as an anti-gun radical judge. Last year the Supreme Court held for the first time that the Second Amendment right to bear arms extends to individuals. The closely divided (5-4) ruling in District of Columbia v. Heller resolved (at least judicially) a highly contentious debate among legal historians and lawyers concerning the scope of the Second Amendment. Many scholars argued that the amendment only created a right for states to arm their militias, not a right for individuals to arm themselves. The Court rejected this view.

The Heller decision, however, does not instantly apply to states and municipalities. Longstanding Supreme Court precedent finds that the Bill of Rights only limits the federal government, not the states. This view is consistent with the history surrounding the Bill of Rights. The first ten amendments to the Constitution represent a compromise designed to secure ratification of the document. Political opposition to the Constitution centered upon the significant expansion of federal power that it created, relative to the Articles of Confederation. The Bill of Rights, which places limits on federal power, secured ratification. The explicit text of some of the amendments reveal this historical context. The First Amendment, for example, states that: "Congress shall make no law respecting an establishment of religion. . . ."

In a line of precedent decided primarily during the liberal Warren Era, the Supreme Court held that the "Due Process Clause" of the Fourteenth Amendment "incorporates" certain portions of the Bill of Rights and makes those freedoms enforceable against state governments (because the Due Process Clause explicitly constrains states). Nothing in the Fourteenth Amendment or in the history surrounding the amendment, however, explicitly states that it incorporates the Bill of Rights. Instead, incorporation resulted from liberal judicial interpretation.

As a result of a case-by-case process, the Supreme Court has deemed most of the Bill of Rights enforceable against state governments. Among the exceptions is the Second Amendment. In 1886, the Supreme Court ruled in Presser v. Illinois that the Second Amendment only limits the federal government and not the states. In 2005, the Second Circuit followed Presser and held in Bach v. Pataki that the Second Amendment does not limit state legislatures. In 2008, Sotomayor sat on a Second Circuit panel that issued a per curiam opinion in Maloney v. Cuomo that follows Presser and Bach and finds that the Second Amendment does not apply to states.

Although incorporation is a liberal doctrine and Supreme Court and Second Circuit precedent finds the Second Amendment unincorporated, conservatives have blasted the Maloney decision. But their criticism is blatantly hypocritical: They are condemning Sotomayor for following precedent. That Sotomayor's rulings adhere closely to precedent and statutory language undermines one of the popular (yet deceitful) tropes her conservative opponents have advanced against her -- that she lacks impartiality and is an ideologue. By condemning Sotomayor for adhering to precedent and strictly following the language in a statute, conservatives are behaving like inconsistent ideologues who only value judicial restraint and fidelity to precedent if doing so leads to conservative outcomes.

Final Thought
Yesterday, a very conservative panel of esteemed judges in the Seventh Circuit, including Judges Richard Posner and Frank Easterbrook, issued an opinion declining to find that the Second Amendment is incorporated. The court stated that the Supreme Court must make this decision, especially because its own precedent holds that the amendment does not apply to states. The panel also explicitly cites to Maloney as influencing its ruling. Perhaps other conservatives will embrace consistency on this issue as well. Actual caselaw refutes the conservative portrayal of Sotomayor as an outcome driven ideologue. If her opponents care about facts, rather than rhetoric, they will soon shift their views.

Note: For links to all of the essays I have written regarding Sotomayor, see: Sonia Sotomayor on Dissenting Justice.