Ned Ryun, son of former Olympic miler and stumbleprone former Congressman Jim Ryun, is worried about Sonia Sotomayor, President Obama’s nominee to replace David Souter on the Supreme Court.
How worried? “I have a sneaking suspicion,” he writes, “that she has a different view of the Constitution than our Founders did.”
I kinda hope so, truth be told. Our Founders thought that the Constitution should allow slavery, should not grant equal rights to women, should not apply equally without regard to race, thought that the Senate should not be directly elected by the states’ voters, and generally believed that the Constitution existed to protect the wealthy and powerful against the masses. I think we all disagree on those points (or most of them, I hope). In fact, so many people did disagree that they passed amendments reversing those policies.
Other changes happened with less fanfare. Until the famous case of Marbury v. Madison, it wasn’t clear what would happen when the Executive and Legislative Branches of the federal government disagreed. In that decision, Chief Justice Marshall formalized the notion of judicial review, giving the Supreme Court power to invalidate unconstitutional laws. That power is nowhere mentioned in the Constitution. Marshall didn’t craft it from whole cloth, but he certainly made policy there, and forever gave appellate courts a role in crafting policy. When Judge Sotomayor says that “the court of appeals is where policy is made,” she’s hardly stepping beyond the role set out for the courts by the nation’s founders. Judges don’t make policy from whole cloth, but the details of how they interpret ambiguities or conflicts in the law unquestionably counts as “making policy,” and judges have done that since the nation was founded.
Nor is Ryun being terribly consistent in all this whinging about judges who aren’t sufficiently “moderate,” or about the Court’s role in policymaking. Not long ago, he was raging against Supreme Court nominee Harriet Miers. He decried the nomination, not based on any assessment of Miers’ judicial philosophy or her view on the constitution, nor (oddly) on her manifest lack of qualifications for the job. No, he imagined her in explicitly partisan, political, policymaking terms. “[I]n an intellectual ‘cage fight’” over a constitutional issue with the Court’s liberals, Ryun says, “Miers would end up in shreds on the floor. Oh, she might give us a good vote,” but she wouldn’t be in a position to sway people. If the matter were simply to ask “What would the Founders do?,” that would hardly require such intellectual pugilism. And if the policy outcome didn’t matter, what would it mean to talk about “a good vote”? No, this is the language of a policy struggle.
If policy didn’t matter, why the insistence that “the White House and Bush surrogates need to provide proof of her judicial conservatism”? Regardless of Ryun’s later worry about judges making policy, he worried about Miers because, as far as he could tell, she “doesn’t have any opinions on the great moral issues of the day.” But her opinions on such issues would only matter if judges acted with personal discretion to enact their own policy preferences.
Furthermore, he thought that this “tabula rasa 60 year-old” was the wrong choice. Sure, she’s evangelical, he argued, but where was the conservative fire. Throughout that essay, “conservative” is used a dozen times, but no mention of the Founders, nor of any recognizable judicial philosophy other than opposition to abortion. And that’s not a judicial philosophy, it’s a policy position. And before he starts whining about Obama’s call for judges with “empathy” and insisting that judges should not think of themselves as enacting policy, he should ponder his earlier insistence that “There are great questions to be decided by this Supreme Court that will determine the moral fabric of this nation.” Those questions are policy questions by any reasonable definition.
Ryun’s preference was for Miers to withdraw her nomination, and for Bush to nominate conservative firebrand Janice Rogers Brown. “Speaking hypothetically,” Ryun pondered, “if Brown became the new nominee, there is little doubt the Democrats would filibuster. They would be forced too, but imagine the PR nightmare of filibustering an African-American woman.” Arguable, but possible. Now, however, it is “obscenely racialist” to suggest that a Latina’s life experience may lead her to a deeper understanding of the challenges of racism and sexism in America than a white man’s might. Sotomayor’s “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life, as conservatives like Rod Dreher acknowledge, is not unreasonable. In context, that statement isn’t about playing any race card, just pointing out “how the context in which we were raised affects how judges see the world, and that it’s unrealistic to pretend otherwise.” The full speech really is worth looking at, not least because of Sotomayor’s nuanced and thoughtful examination not only of how people in majority groups have to work hard to see past their own experience and reach a more neutral vantage, but how she has done the same. Would that her critics could do the same.
Ryun’s comment about Judge Brown is purely racial. Her skin is dark, so it’d be hard to filibuster her, and that’s the reason to nominate her, in his hypothetical. Sotomayor hopes that a Latina would, based on her greater experience of all sides of society, be able to render more nuanced judgments than the average white man. Not because of anything intrinsic to her gender or ethnicity, not because of skin color or ancestry. Because of experience and hard-won wisdom. For Ryun to call that “racialism” rises well beyond the pot calling the kettle black.
However, Ryun did offer some guidance that seems utterly reasonable. Rejecting calls to find a moderate “stealth candidate” to get past political opposition, Ryun asked:
is it me or do Republicans have a ten seat majority in the Senate? Make the Senators toe the line and send in a good conservative nominee. Furthermore, since when has any self-respecting conservative ever ducked a principled fight? Right now I can’t think of a greater fight than the Supreme Court.
I can think of few bigger fights than the Supreme Court, and Democrats currently enjoy a 19 seat lead (20 as soon as Franken is seated) in the Senate. Elections have consequences, and I expect that Ryun will just have to live with this one.