A Republican Obama would vote against Sotomayor

Donklephant explains:

The Wall Street Journal helpfully reprints, without direct comment, Barack Obama’s written justification for voting against John Roberts for the Supreme Court.

After reading Obama’s justification, I’m pretty sure anyone opposing Sonia Sotomayor could simply cut-and-paste the argument, make a few slight changes and call it a day. Why? Because Obama’s entire written statement is just an elaborate way to say “I’m voting against him because I disagree with his politics.” And if political incongruity is a justifiable reason to oppose an otherwise highly qualified candidate, then Obama can’t rightly expect any Republicans to vote for Sotomayor.

In the justification, Obama says Roberts too often sided with the powerful over the weak. But his examples are nothing more than a check-list of liberal political beliefs (affirmative action, abortion, strong centralized government). Couldn’t any conservative justify his or her opposition to Sotomayor by saying she too often sides with special interests over the general interest and then list the exact same policy points, albeit with the implication that conservative are on the proper side of them?

That’s the danger of making political congruity the key factor in voting for or against a judge. It renders all other qualifications moot. If Obama can praise Roberts experience, temperament, intellectual rigor and statements in front of the Senate and yet still oppose the man, then the confirmation process is just a tedious lead-up to a party-line vote.

I guess Obama’s lucky his party has the numbers to win such a vote. If the Republicans controlled the Senate and were to apply Obama’s own logic, there would not be a single compelling reason they should vote for Sotomayor.

My sense is that Obama, the man, would have liked to vote to confirm Roberts, understanding their political disagreements to be normal and unavoidable.

But Obama, the potential Democratic nominee hopeful, couldn't afford to do that. Had he voted for Roberts, Hillary Clinton might have prevailed in the Democratic primary.

Hillary's justification was much the same:

With the future of women's rights, civil rights, and privacy rights at stake, I cannot vote to confirm John Roberts.

I have an obligation to my constituents to make sure that I cast my vote for Chief Justice of the United States for someone I am convinced will be steadfast in protecting fundamental women's rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches. After the Judiciary Hearings, I believe the record on these matters has been left unclear. That uncertainty means as a matter of conscience, I cannot vote to confirm despite Judge Roberts' long history of public service.

In one memo, for example, Judge Roberts argued that Congress has the power to deny the Supreme Court the right to hear appeals from lower courts on constitutional claims involving flag burning, abortion, and other matters. He wrote that the United States would be far better off with fifty different interpretations of the right to choose than with what he called the "judicial excesses embodied in Roe v. Wade."

When questioned about his legal memoranda, Judge Roberts claimed they did not necessarily reflect his views and that he was merely making the best possible case for his clients or responding to a superior's request that he make a particular argument. It is hard to believe he has no opinion on so many critical issues after years as a Justice Department and White House lawyer, appellate advocate and judge.

It is telling that President Bush has said the Justices he most admires are the two most conservative justices, Justices Thomas and Scalia. It is not unreasonable to believe that the President has picked someone in Judge Roberts whom he believes holds a similarly conservative philosophy, and that voting as a bloc they could further limit the power of the Congress, expand the purview of the Executive, and overturn key rulings like Roe v. Wade.

I will, therefore, vote against his confirmation. My desire to maintain the already fragile Supreme Court majority for civil rights, voting rights and women's rights outweighs the respect I have for Judge Roberts' intellect, character, and legal skills.

You can bet that nearly every Republican Senator who might face a contested primary (be it for the presidency or another term) will vote against Sotomayor for congruent reasons—even if they thought she were every bit as qualified as Roberts.

Such are the politics of the court for intraparty primaries.