On Cornyn's Vote Against Judge Sotomayor

What qualifications should a nominee possess to be earn a United States Senator’s vote to confirm the President’s appointment of him or her as a Justice of the Supreme Court of the United States? Eight traits are generally thought of as legitimate bases for approving or rejecting a President’s choice for that position: experience, integrity, intellect, academic background, temperament, impartiality, open-mindedness, and (most controversially) judicial philosophy.

In announcing his opposition to the confirmation of Judge Sonia Sotomayor to become the first Hispanic and only third woman ever to serve on the nation’s highest court, Senator John Cornyn acknowledged that she passes all of those tests except, in his view, one: her judicial philosophy is “mainstream.” That’s disqualifying, according to Cornyn, because, apparently only fanatical ideologues are suitable to sit on the Supreme Court of the United States, as far as Cornyn is concerned.

In explaining why he would vote against Judge Sotomayor, Cornyn began by praising her experience, judicial temperament, and “excellent academic background.” He recognized her integrity and fairness, calling her “an inspiration.” But he will vote against her anyway, he announced, twice noting in his explanation that her judicial philosophy is “mainstream.” Apparently, she’s just not sufficiently predictably doctrinaire to sit on the Court, as far as Cornyn is concerned.

Although her judicial philosophy is “mainstream,” Cornyn worries that, despite that indisputable record, Judge Sotomayor might address issues in the future from a liberal perspective. He admits being uncertain about this possibility, but regards the stakes as “simply too high” to take a chance. “Mainstream” is apparently dangerous; what is required to sit on the Court, according to Cornyn, is unquestionable predisposition towards and fidelity to right wing dogma. A “mainstream” jurist lacks requisite commitment to advancing that agenda and achieving those results.

Maybe we should not be surprised by Cornyn’s condemnation of seating “mainstream” jurists on the Supreme Court. He vigorously supported John Roberts and Samuel Alito for the Court and noone can claim either of them was or is “mainstream” judges. They’re right wing ideologues, that’s for sure. And Senator Cornyn has essentially acknowledged that fact by explaining that his only basis for rejecting Judge Sotomayor is his disagreement with her judicial philosophy – which he describes as “mainstream.”

It’s also disheartening, but probably not surprising, that Cornyn criticized Judge Sotomayor for doing the very thing he advised both Judges Roberts and Alito to do during their confirmation hearings. In his remarks explaining why he would not vote for Judge Sotomayor, Cornyn disingenuously excoriated her for refusing to explain the legal reasoning or constitutional arguments which would guide her determination of cases pending before the Court (or likely to be). “She hid behind process arguments and judicial procedure whenever she could,” he whined.

But during the Alioto hearings, Cornyn admonished the nominee, “Don’t take that bait. Decline to answer any question that you feel would compromise your ability to do your job.” And when asked during the Roberts hearings whether the Senate should “refuse to confirm a Supreme Court nominee who refuses to answer questions on fundamental issues [so that] Senators do not have to guess about a nominee’s philosophy,” Senator Cornyn answered, “I just don’t agree with that.” (National Journal Group interview, July 27, 2005.)

So now Cornyn criticizes Judge Sotomayor for doing exactly what he personally counseled Judges Roberts and Alito to do during their confirmation hearings. What a hypocrite!

At the bottom line, John Cornyn is going to vote against an admittedly (by him) fully qualified, experienced, well-educated, open-minded, integritous, intelligent Latina whose judicial philosophy is mainstream, apparently because he requires assurance that the nominee is a reliable extremist, right wing jurist. At least, that’s what his comments on the floor of the United States Senate indicate.

Cornyn realizes that his views are contrary to those held by the vast majority of Americans. “I will vote [against her] with the certain knowledge that she will be confirmed despite my vote,” he admits. Well, if his opposition to Judge Sotomayor was rational or justifiable, one would expect the American people would let their Senatorial representatives know they, too, prefer an out-of-the-mainstream, extremist judge, or that enough other Senators would agree with him and his assessment to deprive ultimate confirmation of certainty. But even Cornyn knows he’s way off base on this one, and that only a small minority of extreme, right wing Americans and Senators join his condemnation of the Judge Sotomayor nomination.

I guess it’s just a position he needs to take to please his shrinking fanatical base.

Gerry Birnberg
July 27, 2009