Judicial Abstraction

It is becoming clear that conservatives will be unable to torpedo Sonia Sotomayor's nomination to the Supreme Court. What is also becoming clear is that they're losing an opportunity to convince the public that their vision of the courts is superior to that of progressives. And they have no one to blame but themselves.

Even before President Barack Obama nominated Sotomayor, conservatives became incensed when Obama said that "empathy" was a key virtue he looked for in a justice. Empathy, they charged, was nothing but a "code word" masking Obama's true agenda. And these people know from code words. In fact, their biggest problem in this debate is that so much of the time, they themselves speak in code.

Granted, some of the attacks aimed at Sotomayor are straightforward, albeit idiotic and tinged with the eternal grievance of the subjugated white male. But these are mere sidelights and considered by most of the Republicans in the Senate with the power to actually hold up Sotomayor's nomination to be too dangerous to touch. They, along with many of the conservative groups opposed to the nomination, are sticking with the old standbys, particularly "judicial activism."

As has been noted many times before, a "judicial activist" is a judge who makes a ruling you don't like. Those who have attempted to quantify activism, by defining it as the propensity to strike down laws or regulations, for instance, have found that it's the conservative justices who are the most "activist." But the charge was always meant to be a dog whistle, a signal that only certain people were supposed to understand. To the conservative base, the charge that a judge appointed by a Democrat was a judicial activist meant that he or she would favor affirmative action, worker protections, equal rights for gays, the separation of church and state, and above all, Roe v. Wade. At the same time, the formulation was intended to say to the outside world that conservatives weren't concerned about particular outcomes at all but merely wanted the judiciary to stick to the law and the Constitution and not "legislate from the bench."

The problem with dog-whistle politics, however, is that it doesn't have the power to persuade those whose ears aren't attuned to the whistle. And anyone who will recoil in fear when told that Sonia Sotomayor is a "judicial activist" was opposed to her before they even knew who she was.

Conservatives have gotten so used to talking in code that they've forgotten who their audience is. Not that it hasn't been important for them in the past -- for instance, in one of his debates with John Kerry in 2004, President George W. Bush said that he would pick Supreme Court justices who "would not allow their personal opinion to get in the way of the law," and as evidence for the wrong approach he cited Dred Scott, the 1857 case that upheld slavery. "That's a personal opinion. That's not what the Constitution says," Bush said. Observers found the reference a bizarre non sequitur, until the rest of us discovered that anti-choice activists often compare Roe to Dred Scott. Bush was sending a signal to conservative Christians: Worry not, my friends -- I'll make sure that anyone I appoint to the Supreme Court will be a vote to overturn Roe.

But reassuring your supporters that you'll pick their kind of justice is not the same as persuading the broader American public that a president's nominee ought to be feared and hated. Those conservative Christian Republicans don't need to be persuaded to oppose Sotomayor -- they'd oppose any nominee offered by a Democratic president. It's the rest of the country that needs persuading. And a vague notion about adherence to the Constitution is simply not going to get the rest of the country's blood boiling.

Even as their arguments fall flat, it's hard to blame Republicans for staying at such an abstract level. Their problem is that if they actually got specific, they'd be even less persuasive.

Nowhere is this more clear than when it comes Roe v. Wade. Think of the lengths Republican nominees have gone to conceal their opposition to the decision, refusing to even talk about it in their confirmation hearings. The most laughable case was Clarence Thomas, who told the Judiciary Committee with a straight face that not only did he have no opinion one way or another about Roe, he had never in his life even participated in a conversation about the most contentious Supreme Court decision of our time (once on the Court, Thomas urged overturning the case in Planned Parenthood v. Casey, to no one's surprise). The two Republican nominees who followed Thomas did their best to imply that they might just uphold Roe. When asked about the case, both John Roberts and Samuel Alito talked at length about stare decisis, the doctrine that prior Supreme Court decisions should be respected. "There's nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court faithfully under principles of stare decisis," Roberts said. Alito assured the committee he would approach any question on abortion with an "open mind." Virtually no one invested in the abortion debate believed either of them.

Why is this ridiculous charade necessary? For the same reason that conservative activists and politicians will never admit that what they mean by "judicial activist" is someone who supports Roe: because they know that they're on the wrong side of public opinion. A CNN poll taken two weeks ago asked whether people thought Roe ought to be overturned; 68 percent said no. Roberts and Alito certainly knew what they were doing; a CNN/USA Today/Gallup poll taken while the Alito nomination was pending asked, "Suppose that after his confirmation hearings you were convinced Samuel Alito would vote to overturn the Roe v. Wade decision on abortion. If that were the case, would you like to see the Senate vote in favor of Alito serving on the Supreme Court, or not?" Only 34 percent of respondents said they would want the Senate to confirm him, while 56 percent said they would not.

And what else is on the conservative judicial agenda? It may have been best described by Jeffrey Toobin in a New Yorker profile of Chief Justice John Roberts:

"After four years on the Court, however, Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

That's as good a summary of what conservatives want out of the Supreme Court as you'll find. It also points to why Sotomayor is likely to breeze through her hearings, regardless of the screeching from the likes of Limbaugh and Gingrich. Were Roberts' views on things like the scope of presidential power discussed at dinner tables and water coolers during his confirmation? Only in rarefied circles. The broader public never considered the possibility that Roberts could be an ideological extremist, not just because the Democratic opposition to his nomination was so anemic but because he seemed so, well, nice. Polite, thoughtful, good-looking in a forgetful, local weather guy kind of way, Roberts gently batted away questions from Democratic senators on his way to an easy confirmation. Compare him to Robert Bork, he of the scowling visage and Mephistophelian goatee, who looked as if he could explode in anger at any moment.

And what is the public going to see in the Sotomayor hearings? An obviously well-qualified nominee, being questioned by a bunch of Republicans about "judicial philosophy" and "activism," abstract ideas with no apparent connection to people's lives. They won't be able to say what kind of rulings they're afraid Sotomayor might make and why she would be a threat. They won't argue that she'll be a vote to uphold Roe, or that she'll support workers like Lilly Ledbetter when they are discriminated against by their employers, or that she'll rule that the president's powers are not limitless. They will pretend to be investigating Sotomayor's record for sinister leanings, without ever admitting just what it is they hope to discover.

By repeating the mantra of "judicial activism" over and over, conservatives have made it easy for Sotomayor to respond. At some point in her confirmation hearings (probably more than once), some senator will ask her, "Judge, do you believe it's the job of a Supreme Court justice to apply the Constitution, or do you believe they should make the laws?" To which she will reply, "Senator, it's the job of the Supreme Court to apply the Constitution." Asked and answered. Since the "evidence" they have that Sotomayor is a secret activist is so pathetically thin, there won't be much more to say.

In a perfect world, the appointment of a new Supreme Court justice would be the occasion for a meaningful debate about the role the Court plays in our democracy and the different understanding of the Constitution, and justice itself, that the two parties hold. Alas, that is not the world in which we live. So we are treated to an endless argument about a single line, even a single word ("better") Sonia Sotomayor used in a speech eight years ago, alongside a series of increasingly ugly outbursts from the puffy blowhards of the right. They have certainly succeeded, for a brief moment anyway, in framing this debate around their own ugly identity politics. But when Republicans finally get the chance to question Sotomayor, they'll drone on and on about their opposition to "judicial activism." It's just about the only card they have to play. And it won't be enough.

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