The nomination of Sonia Sotomayor who, if confirmed, would be the first Hispanic to serve on the U.S. Supreme Court, represents a teaching moment for the Republican Party.
This is an opportunity for the Grand Old Party to teach its conservative principles of constitutional law to a much broader audience than its own base, and to teach its individual rights philosophy to an audience sure to include the nation’s growing Hispanic population.
First, there are some facts to face. The present ideological balance in the Supreme Court is not likely to change as a consequence of this appointment. Republicans do not have the capacity to stop this appointment. And finally, any effort to diminish or discredit this nominee risks the alienation of a constituency important to any future electoral success.
The present configuration of the Court has four reliably conservative justices (i.e., Scalia, Thomas, Roberts and Alito), four reliably liberal justices (i.e., Stevens, Souter, Ginsburg, and Breyer) and one right-leaning swing justice (Kennedy). Swapping Sonia Sotomayor for David Souter does not change that.
At present the GOP holds just 40 seats in the Senate. It takes at least 41 votes to prevent the Senate from giving its advice and consent to this nomination, and it’s improbable, if not entirely impossible, for the Republicans to get them.
Finally, while politics is the least consideration, it is an important one. Consider the Electoral College map: California and Texas are already majority-minority states, and New York and Georgia may be as early as 2012. Another generation will see the U.S. become a majority-minority nation. This is being driven primarily by growth in the Hispanic population. Republicans should be careful not to be seen as attacking Sotomayor.
In 2008 Republican presidential nominee John McCain garnered 31 percent of the Hispanic votes, but in 2004 George W. Bush got 44 percent. While some of that erosion can be attributed to the presence of another minority on the ballot, battles over illegal immigration clearly alienated them, as well. A full-throated opposition to Sotomayor would further alienate, perhaps permanently, this growing and critically important demographic.
So, if you’re a conservative Republican and you can’t make the court more conservative, you can’t stop the appointment of a liberal nominee, and you can’t risk scaring away Hispanic voters, what can you do? Here are some humble suggestions:
- Make “states rights” and “strict constructionist” and “judicial activism” more than buzzwords, and
- Reassure Hispanics that, even if they must oppose the nomination of the first Hispanic nominee for the Supreme Court, Republicans are respectful of their real concerns.
The confirmation hearings provide Republican members of the Senate Judiciary Committee opportunities to ask questions that could serve to draw out the nominee’s liberal judicial philosophy and ethnocentric thinking.
It is important to remind all voters that the states created the federal government, not the other way around. That the Constitution is not an evolving document. It must be read as it is, and not as some may wish it to be. Finally, when it may be necessary to judge something unconstitutional, judges should not take the additional step of prescribing certain actions in order to achieve constitutionality. If the Court rules something unconstitutional, it is for Congress to decided a remedy. Republican questioning during her confirmation hearings should focus on these issues.
The 15 percent of the population that is Hispanic will take justifiable pride in this nomination, and they will be watching. It is a difficult and inadvisable thing to stand in the way of history. Nonetheless, all those eyes give the Republicans an opportunity to show this important constituency how its conservative principles address their needs and concerns.
In questioning the liberalism of the nominee, Republicans should communicate to the Hispanic audience that they prefer to empower the individual — including the Hispanic individual — to elevate his own place in society, rather than mandate it from the legislature, or dictate it from the judiciary.
In exposing the nominee’s belief that her ethnicity should influence her decisions, Republicans should demonstrate that while it is respectful of her background, the nation is better served by justices that judge law without regard to the consequences. When judges concern themselves with outcomes they construe the law to achieve them, and all citizens — including Hispanic citizens — are not well served by that.
In the end expect Sotomayor to be seated as the first Hispanic member on the Supreme Court, and hope that Republicans, who might be justified in opposing this nominee on judicial and philosophical grounds, do not express that opposition in a way that further alienates an important and growing constituency. Otherwise, it may be they who learn a hard lesson.