For Republicans in the Senate the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.
I have occasionally defended some of Bush’s well intentioned mistakes, but there’s no way to put a happy face on this one, because it is going to put a woman on the highest court in the land who believes that judges should write the laws, that some racial and social groups are more worthy than others, that gun rights aren’t really protected in the constitution, that government can seize your property without due process and give it to businesses and that free speech is a privilege granted by government to some and not others.
The problem which faces Republicans in this nomination, is that they will likely find themselves unable to filibuster or oppose Sotomayor with any vehemence because she is hispanic and a woman with a record of flaws which are ideological rather than ethical. Already great pressure is being exerted on GOP senators from party leadership to go easy on Sotomayor to earn some credit with the administration for the future. The fear is that opposition to Sotomayor may cost Republicans hispanic support at a time when they need every new vote they can get and when hispanic Republican politicians are rising on the national stage, increasing hopes for a breakthrough with that constituency.
The irony is that this would not be nearly as much of a problem for the GOP had it not been for a little noted failure of the Bush administration. The seeds of this situation were planted back in 2005 when Sandra Day O’Connor was retiring and Bush floated the names of a number of hispanic judges as potential replacements, including Emilio Garza, Alberto Gonzales and Consuelo Callahan. In each of these cases Democrat Senators told President Bush that he would face a filibuster against the candidate and his response was to back down and look for another nominee who was more acceptable to Democrats. The problem with this morally weak strategy was that it meant that despite his desire to apppoint the first hispanic justice, Bush threw away that opportunity and the chance it provided to score points with hispanic voters and now that opportunity has been handed to the Democrats.
In 2005 Bush should have picked the best qualified of the hispanic candidates — probably Emilio Garza — and nominated him and taken his chances with a filibuster. Or he could have nominated the ever-cooperative Alberto Gonzales with the specific expectation that he would be borked for the team. That would have put the Democrats in the position of having to attack and filibuster a hispanic nominee, costing them support in that community and making the administration and the GOP look like they were the ones fighting for the advancement of minorities in government. Even though the nomination might have been blocked the result would have been an enormous boost in popularity with hispanics for the Republicans and a ding on the civil rights record of the Democrats. It’s also entirely possible that the Democrats might have been bluffing and would have backed down to avoid seeming hostile to a hispanic nominee.
As in other situations, Bush played politics like an amateur and failed to push what should have been an obvious advantage and the Republican party is still paying the price of that mistake. If Bush had played the situation the right way in 2005 then today Sotomayor would not enjoy the immunity conferred on the first hispanic Supreme Court nominee, the GOP would be stronger overall, and might be able to oppose Sotomayor if their ideological concerns are strong enough. But as a weakened party desperate to be liked, the GOP may very well have to bite the bullet, sacrifice principles again and roll over and accept Sotomayor despite her troubling record. And yes, you can blame Bush for it.