Examining the Judge Sotomayor nomination is something that puts a unique light on the Republican Party: just what does the Party stand for?
However, Senate Republicans still must decide how to deal with this nomination. And if they do more than merely go through the motions, we could see, if not drama, then at least fireworks. And, most importantly, some teaching moments.
The principles that should guide Republicans seem clear: They should apply the same approach to the Sotomayor nomination that the Democrats applied to the nominations of John Roberts and Samuel Alito. This means, first, that they should question the nominee searchingly, albeit with far greater civility than the Democrats accorded Roberts and Alito.
It also means that Republican Senators should feel free to vote against Judge Sotomayor if they conclude they are likely to disagree with most of her decisions in controversial cases. It was on this basis alone that half of the Democratic Senators voted against Roberts, and 40 of 44 later voted against Alito.
At that time, Republicans objected mightily to the “politicization” of the confirmation process. They argued that the president deserves considerable deference when it comes to judicial nominees – the deference Republicans showed President Clinton when they voted overwhelmingly for his two liberal Supreme Court nominees, Justices Stephen Breyer and Ruth Ginsburg.
These were, and remain, excellent arguments. But it will not do to have one set of rules for confirming the nominees of Democratic presidents and another set for confirming Republican nominees. Thus, Republicans should grant no more deference to Obama’s selections than the Democrats did for Bush’s, but also no less.
This raises the question: what are the grounds for disagreeing with her decisions?
It is a question that is answered by the concept of Strict Constructionism (Wikipedia link, YMMV) that is narrowly applied to the judiciary but, as a concept, is one that addresses the entire US Constitution. It is often conflated with Originalism doctrine ( the concept that the Constitution has a fixed and knowable meaning at the time of its drafting) and Textualism (the concept that how a text reads is the guiding light, not legislative intent and background). These all address a common theme, however, which is that of the Constitution being a designed instrument of society to help it restrict the worst abuses of individuals. This comes under Mechanism design (Wikipedia link, YMMV) theory attributed to economics and game theory:
In economics and game theory, mechanism design is the study of designing rules of a game or system to achieve a specific outcome, even though each agent may be self-interested. This is done by setting up a structure in which agents have an incentive to behave according to the rules. The resulting mechanism is then said to implement the desired outcome. The strength of such a result depends on the solution concept used in the rules. It is related to metagame analysis, which uses the techniques of game theory to develop rules for a game.
To me the US Constitution is a part of this concept as it is a created document with specific outcome that will be yielded by a defined system (this is a topic I have examined before here and here plus a number of other works). That outcome is equal application of the law and all citizens treated equally under the law. As we are each agents within the system, we have our own self-interest (we call it Liberty) as our goal, but not all goals of those in the system seek the equal application that is given to us by the mechanism design. As a solution, the US Constitution has fared rather well, putting the law above individuals so that a common sense interpretation of given text (Textualism) is often seen as the object of laws within the Constitutional framework.
Textualism removes intent from individual laws and puts intent at the highest design level, that of the Constitution, and then a faithful execution of all valid laws thereafter will yield the result of equal application of the law.
Textualism as a concept is Originalism with strict adherence to the text of the mechanism design, while Originalism itself also looks at the concepts guiding the drafting of the mechanism.
Both run afoul, however, of agents within the system seeking other ends outside of the framework, namely equality of results, not of application, and to change the intent meaning from fixed to current culture oriented (the concept of a 'Living Constitution' with no fixed framework, and thus no fixed goals or ideals). Additionally both have understood backing via previous texts that look at how Nations are run, what their limits are, what their Sovereign powers are, and so on, which was Law of Nations both as a text and body of work (lower case).
Thus when you get to Strict Constructionism and limit it to purely legal areas and to put into play that fidelity to original meaning is a touchstone of judicial practice misses the point. Legal practice and the Judiciary in a Constitutional system that preserves individual agent activity we call Liberty is the point of the entire SYSTEM of rules, not just the Judiciary. That is how a mechanism design analyst sees the Constitution and Strict Constructionism: the law is an object of equal application and getting to such law does NOT start at the Judiciary but the Legislative in our Constitutional system.
I am and have been a gamer throughout most of my late juvenile to adult life: I have played games of many wide ranging venues from simple interaction games (marbles) to low level/individual combat games to the broadest ranging, grand strategic games that I could find. They all have rules associated with them that describe the game mechanism. In the community of gamers there are those known as 'Rule Lawyers', who will quibble on every point of the text and who glory in every exception to every rule they can find, and those of 'Game Flow Practice' who seek to understand the overall flow of the mechanism design and ensure that the rules are faithful to the overall flow of the game. Some games, like Star Fleet Battles, got so rule intensive that the '5 minute' meta-rule was put in place to limit Rule Lawyers from scouring the voluminous set of rules, addenda, fixes, qualifications and such that came out about every two months. Believe me, 5 minutes is forever in a game that can last (without the look-ups) anywhere from 30 minutes to 6 hours. Add in six or seven rule look-ups and you can spend more time looking AT the rules rather than PLAYING the game.
In the legal theory area, the Rule Lawyers are practicing Textualism and the Game Flow Practitioners are practicing Originalism. At times you can come down to ad hoc judgments when the text can't be found and the overall flow can point to multiple interpretations, thus you find someone uninterested in the particular rule but who is knowledgeable in the game to then set the standard for that game. Walking both the rules and their intent put me in that spot more times, in more games, than I can recall, with SFB just being the most frequent consultation as the rule updates were frequent and voluminous. After the game the ACTUAL rule does have to be found and set straight for everyone as a similar circumstance is most likely to come up again, thus leading to private indexes of the rules to facilitate finding them.
That is the role of the Supreme Court in the Constitutional system: the last part of it.
By trying to limit Strict Constructionism ONLY to the Supreme Court, those pushing such doctrine are ignoring the entire structure of the US Constitution in which the Supreme Court is the last remedy for ill-made laws.
The first remedy is not to make them.
That is in the hands of the Legislative branch in the House and Senate.
By any of the three outlooks, Strict Constructionism, Textualism, Originalism, the place that is handed the first priority of law it the branch that makes it, thus any conservative following these views must review where such bad laws come from that no longer seek equal application of the law.
Any law that affords special protection, special rights or special privileges based on class, race, gender, ethnicity, religion or any other thing is contrary to each of these doctrines. And yet many preaching them in the Senate (in particular but the House has its own coterie) is abridging their views to seek a form of non-allowed law based on other doctrines.
What is Social Security but a special mandate for those over a certain age to be forced to retire with government recompense? That is all of the people providing a special privilege with remunerations to a group based on age.
What are subsidies but the provisioning of a small class of farmers, per subsidy, given special protection, often with monetary backing, based on a commodity.
All quota based systems or those that seek 'representative employment via population percentage' of race, class, gender, or ethnicity that is a special privilege that over-rides merit, skill and the worth of liberty to those in the protected class. If the aim is to have color-blind law, where each individual has equal access, then equal judgment of skills and abilities will lead to unequal ends as that is the very definition of liberty: using ones skills and abilities to prosper by them in proportion to which you have them which is unequal across the entire population.
When laws are made to exempt or provide an amnesty to any group or class that has previously disobeyed the law, and the law itself is legal and supported, then that is a special exemption for illegal behavior.
The 'good' of each of these disregards the doctrines in question in each circumstance: by construction, by text and by original intent. That is no 'good' but a debasement of the mechanism design which is the compact amongst all citizens that we agree to and invoke in Our name in the Preamble of the Constitution. That social compact has its own structure and limitations, and they are extremely strict and followed not only in the body of the Constitution but as a construct across the entire Constitution itself.
First are limited objectives, with objectives derived from the people. That is not only given in each Article but starting from the Preamble: objectives come first.
Second are limited means to achieve those objectives. Again the Preamble serves as the limited objectives preface to the document and the document body is the means to achieve limited objectives. This is recursively repeated at a lower level for each Article.
Third and last are rights to be utilized in the limited means for limited objectives. Here the larger body with the Bill of Rights included clearly circumscribes government to only those direct rights handed to it and no others, that via the negative rights prescription on the federal government in Amendments IX and X, but also clear from the construction within the body of the document itself.
Thus the mechanism design is one of limited government given very few venues to work in, with extremely limited means to be used just within those venues and the bare rights necessary to exercise those means to achieve those objectives. All other rights, means and objectives are retained by the States and the people.
If you say that you are a strict constructionist, textualist or originalist (or variation thereof) then the object of government restraint sees its last place in the Judiciary: it is the counter-weight to poor laws and abusive administration of same. That is exactly 1/3 of the countervailing parts of government that keep each other in check via different domains of power so as to balance the internal system. The entire system, as given, is balanced between the National, the States and the People, each of these have their own domains and powers to keep the others in check and balance. That is the system you invoke with those doctrines, and stepping outside of those doctrines to do 'good' that is unequal law for equality of result should be anathema to you.
To do as you say requires actions that you seek to limit power, limit laws, limit the expanse of government so as to ensure the people, as a whole and as all of the people, do not have their liberty infringed upon by government. Government is no help-mate, no hand maiden, no sugar daddy and not the place to get wealth and fame by chiseling it out of the common good that must address all of the people. To do otherwise, to say otherwise, to be 'nice' or 'fair' when those doctrines require equality of application and accepting that results will be unequal is to invalidate your claim to upholding those views.
To mean what you say you must act in accordance with your words and mean them via the application of them to ensure the liberty and safety of all of the people, and not to expand the bounds and power of government as each time you do you are impoverishing the whole of the people. To do otherwise is to dishonor your word, to perform dishonorable actions and to otherwise abuse the trust of those that place their faith in your words by NOT faithfully executing them.
This is a problem for the entire Republican Party.
There are those that are Traditionalists or who see that the mechanism design of the Constitution is our greatest safeguard against tyranny. Many run on this as 'conservatives' but then do not follow through with their actions thus showing either ignorance, incompetence or pure dishonesty of viewpoint to win elections.
That is dishonorable.
Mind you, those that want no adherence to that construction which is the compact between all the people are dishonorable to start with: they do not abide by our common agreement and seek to abridge it openly. They are OPENLY dishonorable, and make no bones about it.
I don't vote for either type.
One is honestly seeking tyrannical ends and the other is dishonestly seeking that.
Both don't want you to look at their records and hold them to account to our common agreement as a society when we put this system of government in place.
If you want a different system of government, then lobby for it, engage your fellow citizens and seek to bring a greater understanding for what you seek across all of society, in all its venues, and across all its differences. That is honorable. I may disagree with the proposed system, but taking the open, blunt and engaging way towards the greater end of civil society is an honorable activity no matter how ill the ends you seek are.
For those in the Halls of Power that say they wish to uphold the compact through the means of Strict Constructionism, Textualism or Originalism, and when you have done otherwise in your career, you are not seen in a good light.
You can swear you mean these things, but your actions belie your words.
If you are to make a stand against tyranny, then state clearly, unequivocally, completely, that you understand that you have done wrong in the past, that you have not upheld your word via your actions and that today you will never, ever, vote for abridging the mechanism designed by We the People and will work you god damned ass off in removing the extra parts of government which serve minimal 'good' ends and impoverish the people and infringe on liberty.
The place is not to take the ill-conceived William F. Buckley stance of standing athwart history yelling 'STOP!!'
That will get you bulldozed.
Do you mean your Oath of Office?
Have you read the text that you are to uphold?
Do you respect the wishes of all the people for equality under the law?
Or are you a Tyrant?
Now is the time to declare: No Further, Turn Back, or there will be Hell to pay.
No more Mr. Nice Guy.
That day, is over.