Will Sotomayor Split the Right?

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Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.  She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.

She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety....

She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.

Long is a former law clerk to Supreme Court Justice Clarence Thomas, and her group is run by a fellow named Gary Marx, who worked for the Bush-Cheney reelection campaign in 2004 and who was also a fundraiser for a social conservative group affiliated with religious right leader James Dobson. The Judicial Confirmation Network's quick opposition to Sotomayor--it aired ads against her before she was even picked by Obama--is an indication that the the Christian right is preparing for battle. As soon as Obama publicly named Sotomayor, two fundamentalist leaders and militant antiabortion crusaders--Rev. Patrick Mahoney of the Christian Defense Coalition and Rev. Rob Schenck of Faith and Action--held a prayer service in front of the Supreme Court to oppose the appointment. Concerned Women for America, a mainstay of the fundamentalist right, derided Sotomayor's "immodest bias," criticizing her for having remarked that a "'Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

But will the social conservatives eager for a fight over Sotomayor be supported by others on the right, as they try to block the appointment of the first Latina Supreme Court justice, whose life story (from housing project to Supreme Court!) is full of triumph-over-adversity inspiration?

Not everyone on the right appears eager for a war over Sotomayor. On May 1, conservative pundit and strategist Bill Kristol gave a talk to the DC lawyers' chapter of the Federalist Society, the preeminent conservative legal group. (Members include Supreme Court Justices Antonin Scalia and Samuel Alito Jr.) He said that Sotomayor would be hard to oppose, noting her Hispanic background and pointing out that she was first appointed to the federal bench by President George H.W. Bush. Kristol called her an attractive candidate and predicted she would sail through the confirmation process, with minimal Republican resistance. He did not believe Sotomayor would galvanize a meaningful opposition and did not encourage a full-scale campaign against her.

His remarks seemed in sync with the sentiment of the crowd in the room. The conservative lawyers at the event appeared more concerned about the ideological balance of the court and realized that any Obama pick would likely be a liberal-minded jurist replacing liberal-minded Justice David Souter. One prominent Federalist Society official said that he doubted that any fight over Sotomayor (or any other candidate then on Obama's short list) would galvanize conservatives.

It's possible that the right is heading toward a split between those who want to Bork President Obama's first Supreme Court pick--blasting her for a decision siding with the city of New Haven in a discrimination case brought by white firefighters who objected to the deep-sixing of a promotion exam that yielded low scores for minorities--and those conservatives who don't see the political gain in trying to destroy the first female Hispanic appointee when the Democrats have a large majority in the Senate. Some leading conservative voices have dumped on her. Karl Rove assailed her as a liberal, activist judge who does not have the "intellectual powers" to make a difference on the court. National Review writer Ramesh Ponnuru tagged her "Obama's Harriet Miers." Former GOP presidential candidate Mike Huckabee criticized the Sotomayor choice as "the clearest indication yet that President Obama's campaign promises to be a centrist and think in a bipartisan way were mere rhetoric. Sotomayor comes from the far left and will likely leave us with something akin to the 'Extreme Court' that could mark a major shift." But this hardly signals that mainstream conservatives--and, most important, Senate Republicans--are gearing up to go after Sotomayor and annihilate her. And GOP chair Michael Steele cautioned a slow and deliberate response, saying "Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views."

No doubt, cable TV conservatives will decry Sotomayor's decisions and chide Obama for citing her real-world experience as "a necessary ingredient in the kind of justice we need on the Supreme Court." And there will be rightwing advocacy groups exploiting the moment by sending out dire-sounding direct mail and blast emails to raise money off this pick. But all this does not make for a concerted and coordinated opposition the White House has to fret about. If Republicans do end up deciding that a major fight against Sotomayor is not in their best political interests, that surely will disappoint some of their comrades on the right--and that could spark a nasty intra-movement squabble. (Huckabee may have his first issue for the 2012 GOP presidential primaries.) By selecting Sotomayor, Obama is forcing Senate GOPers to choose between attacking a Hispanic appointee (and possibly alienating Hispanic voters) and ticking off social conservatives. At the moment, the GOPers' calculation seems obvious. But it could come at a cost of a cat-fight on the right.

UPDATE: Shortly after Huckabee slammed Sotomayor, Mitt Romney, another 2012 GOP wannabe, said he found her nomination "troubling," claiming she has an "expansive view" of the Constitution. (No way Romney was going to let Huckabee get out in front of him on this.) Meanwhile, Richard Viguerie, one of the founders of the modern conservative movement, issued a call for an anti-Sotomayor campaign: "This is an enormous opportunity for conservatives to define President Obama as a radical liberal in a way that Republicans have so far failed to do."

Additional reporting by Stephanie Mencimer.

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