Tuesday, July 14, 2009


Here are two arguments by conservative Christians for not opposing the confirmation of Sonia Sotomayor:

Stopping Sonia Sotomayor would just lead to a different appointment that will probably be worse. While she was not really the choice of President George H.W. Bush, she was the choice of Senator Daniel Moynihan (in a deal with the first President Bush over New York appointments) and Moynihan was a reasonable person who was unpredictable in some of his left-of-center views.

Of all the appointments President Obama was likely to make (imagine the horrific governor of Michigan on the Court!), this one has the best chance to pull a reverse-Souter (a drift right) and present some pleasant surprises to conservatives. Of course, Sonia Sotomayor is likely going to be a conventional liberal, but she has staked out few opinions on hot-button social issues.


Nonetheless, it would be stupid to filibuster this nomination. Judge Sotomayor is probably as good a nominee by conservative lights as anyone could expect to get from President Obama. I'm convinced that all three of his other short-listers would be less friendly to concerns conservatives would care about, expect perhaps on specific issues. For example, Elena Kagan would be more friendly toward Bush views on security and executive power, something Obama may kick himself for once Sotomayor is on the Supreme Court if she, as I expect, continues to vote the way Souter has voted instead of taking the majority toward views more favorable to the ways Obama has continued Bush policies on the war on terrorism, which Kagan would have been more sympathetic to. But I'm convinced Kagan would probably more easily import ideology over the law than Sotomayor would do, given Sotomayor's case history and Kagan's lack of judicial experience, which often produces justices who vote based on policy preference.


These are two statements of the same basic argument. And it’s a reasonable argument. So I won’t pounce on Jeremy Pierce or John Mark Reynolds for making it.

However, I can also think of some counterarguments which are equally reasonable–if not more so:

1.Much of the success of liberalism lies in building on false premises. Liberals will stipulate a falsehood. If allowed to go unchecked, this falsehood will become an unquestionable “truth.” And liberals then proceed to erect a superstructure on that false premise.

One can think of many examples. For example, the Supreme Court made the freedom to buy of contraceptives a Constitutional right by finding a right of primacy in the Constitution.

Now, there may well be a right of privacy in the Constitution. But it has nothing to do with a Constitutional right to buy contraceptives.

Likewise, I think adults do have a right to buy most contraceptives. But that doesn’t make it a Constitutional right. That should be a statutory right, created by state legislatures.

This, in turn, became the false premise for a Constitutional right to have an abortion.

Then, having trumped up a bogus Constitutional right to an abortion, that became the premise to create a Constitutional right to Federally funded abortion “services.”

To take another example: Congress struck down the Jim Crow laws. Fine. Jim Crow laws should not have been enacted in the first place.

However, just because mandatory segregation is wrong doesn’t’ mean the alternative should be mandatory desegregation. Having made that fallacious leap of logic, Congress and the courts then began to practice reverse discrimination.

To take yet another example: I think, starting in the 80s, state and federal gov’t began to pass hate crime laws. That was a mistake from the get-go. And, predictably, as time went on, ever more groups came in for preferential treatment.

Back to Sotomayor. Take her infamous remark about how a “wise Latina” makes a better judge than a white man.

This is an allusion to the liberal notion of white privilege. Whites have it easy. Only minorities know about adversity.

This is classic stereotyping of the worst kind. If a white nominee said the same thing in reverse, he’d have to withdraw his name from further consideration.

But because liberals automatically treat certain minority groups as victims of oppression, they think minorities like Sotomayor are entitled to a double standard.

This is precisely the sort of false premise which ought to be cut down root and branch before it takes hold and begins to spread--–like a wild vine that chokes the life out of everything within reach.

Or take her notorious ruling in which she summarily disenfranchised white and Latino firefighters because some black applicants flunked the very same exam. Pure outcome based jurisprudence. Disregard objective, uniform qualifications. Arbitrarily discriminate on the basis of race.

Once again, that should never be tolerated. Never be allowed to take root.

These false premises are dangerous on two grounds. They are harmful in their own right. And they lay the foundation for further absurdities and injustices.

Every liberal false premise must be subjected to immediate and unremitting attack before it gets a chance to become entrenched and do ever more damage. Dig it up before it gets dug in.

2.Then there’s the tactical question. In politics, you win by winning. You win by racking up a record of wins. Winning is cumulative. Progressive. Winning creates its own momentum. A previous win raises the odds of a subsequent win.

Sure, you don’t win every time, but unless you play to win, you’re bound to lose every time. If you do nothing, you lose. If you do nothing, the other side wins by default. If you do nothing, you lose influence. You lose relevance. Coming in second is better than sitting it out.

The only way to stay competitive is to compete. Compete wherever and whenever the opposition competes.

So conservatives should maintain the pressure. Steady pressure. Never let up. Never back away.

Put another way, don't refrain from taking action out of fear. As the Italians say, whoever acts like a sheep will be eaten by the wolf.

3.Finally, I think Jeremy Pierce is always worth reading. He’s usually incisive and insightful. I appreciate his painstaking analysis.

However, there are times when he can be charitable to fault. It’s not always prudent to give people the benefit of the doubt, or put the best possible construction on their words. In many situations, that’s just plain gullible.

The judiciary is very politicized. And politicians can be quite devious. We need to read between the lines. Have a good ear for code language. Know what makes a liberal tick.

It’s not an intellectual or moral virtue to be played for a chump.


  1. Your counterarguments are actually more persuasive. And irenic to boot.

    Well done.

  2. Hey, maybe if all of us fundies on the religious right start voicing our desire to have Sotomayor confirmed, maybe the Senate will have second thoughts...

  3. Steve, this is an exceptional treatment of the "false edifice" process. Is anyone "out there" in academia or even in any of the think-tanks writing about this at a level that could take root among the politicians?