Unfortunately, this kind of analysis is something that could be found in a not-so-good high school student newspaper, and is deserving of some questions for the WSJ editors:

First, please name any major conservative politician, pundit, talk radio show host or blogger who has ever seriously said – or even implied – that a Republican candidate need agree with them on every issue. Please be specific.

Second, who is it – specifically – that is as “bloody-minded and intolerant of all dissent as the hard left is at the Daily Kos,” and on what issue or issues in particular? Because comparing a conservative’s intolerance of politicians who fail to support our soldiers, or who appease terrorists, or who confirm extreme activist judges, or who constantly embrace big government spending, or who support economy-killing environmental policy, or who “negotiate” a form of socialized medicine… with those on the left’s intolerance of those who don’t do enough of these things is absurd.

Third, which “right-wing blogger or talk show host” prefers “having Democrats in power because it drives up their own ratings,” specifically? Rush? Sean? Levin? RedState? National Review Online? Who?

Fourth, who is calling for a candidate in Illinois, California or Connecticut to sound like Tom DeLay, specifically? And, what if some conservative did? Which specific principles, issues, or policies advocated by Mr. Delay would be worthy of trading for a coveted congressional or senate seat?

Fifth, Democrats did not drive Joe Lieberman out of the party in any practical sense. He still caucuses with them and still votes with them on most issues not involving middle east policy. And even if the ant-war left crazies did force him to run as an Independent Democrat, how is that comparable to the Hoffman-Scozzafava situation? Scozzafava isn’t even close to a Republican much less a conservative. Lieberman was the Democrats’ VP candidate just 6 years prior to his switch. He is – on most issues – liberal.

This is the fallacy of the “litmus test” argument. It’s ridiculous to suggest that having even a bare minimum of standard of a belief in liberty, limited government, fiscal responsibility, strong national security, respect for life, American exceptionalism and a general sense of getting the government to leave us the hell alone is some kind of litmus test.

Until conservatives stop comparing that which is not comparable – and stop trying to “make nice” in an environment where our way of life is under attack – the Republican Party and the health of our nation will flounder.

In the convoluted world of the Voting Rights Act, about which Chief Justice Roberts famously said, “It is a sordid business, this divvying up by race…” (see LULAC v. Perry, 548 U.S. 399 (2006)), it is never surprising when high-minded liberals use racism to combat supposed racism. Rare, however, is it that the Department of Justice or a Court is so blatant about it.

Welcome to Kinston, N.C. The city overwhelmingly voted to eliminate party affiliations for candidates in local elections. Given the state of each of the political parties these days, one might give the city the benefit of the doubt that this decision is a good, healthy thing.

But, Kinston must pre-clear any actions it takes regarding voting and elections with the Department of Justice pursuant to the Voting Rights Act. And the Department said, “no.” That, in and of itself, is not all that surprising (troubling, but not surprising). What is quite startling is the language the Department uses. According to the Washington Times:

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.

That’s right… “white voters… will vote for blacks only if they are Democrats.” Well, this is fairly common theory among abusers of the Voting Rights to political ends, but it usually isn’t said in such clear language.

What is particularly interesting, according to the article, neither local elected officials in Kinston nor a group of local voters could recall a Republican ever winning an election in the town. It’s a “one-party town.”

Further, if the article is correct, the town voted for this change last November, when a record number of blacks turned out to vote for President Obama.

Finally, again according to the article, even the local NAACP chapter head is skeptical of the decision.

No one doubts the troubling racial past of many jurisdictions in America - particular, of course, in the South (though it would be unfair not to give a hat tip to Cincinatti, South Boston, etc…). But the Voting Rights Act has, sadly, become little more than a tool for political hacks to hide behind race in a quest to promote liberal ideology and the Democrat Party.

This past Friday, the Wall Street Journal ran an article entitled “Fiscal Conservatism and the Soul of the GOP,” centered around an interview of Governor Perry. In that article, the Governor outlines his view of the current state of affairs and of the appropriate path forward… for Texas and for the nation. It is absolutely rich with solid, well articulated conservative position. For example, he acknowledges that the reason the GOP has “been hurting” is that “they spent too much money. They acted like Democrats.” He gets quite specific, stating “When they passed that pharmaceutical bill for everybody forever—I mean, one of the most expensive entitlement programs that this country’s ever seen before—we started on the road to hell.” Amen.

He blasts Obamacare - calling it “one of the scariest policies.” He touts tort reform. He notes the absurdity of focusing on a flawed immigration plan as a way to “win” hispanic votes, and shows an understanding of that community which represents more than one third of his state demographically. He recognizes good people to follow and miserable people to follow. For example, stating, “I love Sarah Palin… [s]he is substantially more the face of this country than some other people who might want to be…” He points to Hayek’s “The Road to Serfdom,” and the more contemporary book by Amity Shlaes, “The Forgotten Man,” as books currently occupying his thoughts. On the other hand, he notes the squandered opportunities by Governor Arnold Schwarzenegger, and he rightfully calls Senator Voinovich (R-OH) a “piece of work,” in response to the Senator’s idiotic and misplaced dismissal of southern conservatives. Finally, he calls out the Obama administration directly, saying, “[t]o me, this is one of the great Frankenstein experimentations in American history. We’ve seen that movie before. It was from 1932 to 1940.”

In short, Perry “gets it.” He swatted issue after issue out of the park - relying on limited government conservatism to make the case for Texas and for the nation, and possibly more importantly, unabashadly calling people out who fail to stand on principle and praising those who do.

Now let’s take a look at a recent op-ed by the Senior Senator from Texas - in which she makes the case for blowing your brains out while sitting around a table with a bunch of Washington insiders rationalizing their way to mediocrity and obsolescence while bowing down at the altar of the national government. Overstatement? Well, go ahead and waste a few minutes of your life reading the uplifting masterpiece she “wrote” (we know some staffer wrote it, but her name’s on it…) in the Austin American-Statesman a few weeks ago. Ok - feel inspired yet? Uh-huh.

The purpose of the article is obvious - to take a swipe at Perry for turning down the $550 Million for unemployment assistance included as part of the various stimulus bills. The problems are multiple. First, she tries to call Perry out for being a hypocrite - by saying he took 97% of the total monies offered while turning down this particular funding (the $550 Million). Yet, her whole point is that he should take the money - which she acknowledges he took to the tune of 97%. She then goes on to criticize Texas’ use of $12.1 Billion in “federal” money to close its deficit - yet, she neither suggests she would have done something differently nor explains how this does not contradict her own premise of this piece - TAKE THE MONEY!

Finally, even if we accept her arguments (which we should not), the bigger point here is the fact that what she wrote is absolutely dripping with Washington-itis. That disease of all diseases… After criticizing the Governor for taking the money described above, she said “so this anti-Washington rhetoric seems a little hypocritical.” (Just picture her stamping her feet really hard when saying it.) Then, she goes on to defend Washington… asking rhetorically where the Governor was going for a loan, and answering “Washington, D.C.” Then she rattles off this passage, just for good measure:

A fair question to ask: What would you have done? I would have sought a way to cut the excessive federal strings. If that didn’t work, I would have urged the Legislature to accept the funding and reduce the blow to Texas employers now. Then I would have had the political courage to make certain that unnecessary benefits were reversed once the current economic crisis has passed… In fact, by engaging legislative leaders, a strong governor likely could have obtained commitments to make those future changes before accepting Texas’ allotment.

Just shoot me. This is the same kind of nonsense the GOP “leadership” batted around the table for the last 8 years while accomplishing nothing except driving the Party, and to some degree - the nation - into a ditch.

Look, reasonable people can disagree whether and how to tell the federal - that is, national - government to go stuff it. That’s not the point. The point is this - just reading these two pieces… which political leader do you want on your team? Which one do you wish to follow? Which one is more likely to defer to Washington, D.C. as Governor? Which one is likely to fight for limited, not expanded government, at any level? Which one is likely to cut deals and then declare victory while liberty becomes a faint memory?

In the WSJ piece, Governor Perry offered the following about the race against Hutchison… “She’s in Washington, I’m in Texas… I’m busy running a state . . . I’m a results guy and that’s process . . . It’s important to run the state. Politics will take care of themselves.” “Washington is not the place that great change is going to occur in America. It will occur in the laboratory of innovation called the states. I want to be a part of that.”

Right. And Texas has been doing pretty darned well relative to the nation lately.

That said, it is difficult to be optimistic. Justice Sotomayor has expressly, and flippantly, embraced the idea that judges do, and seemingly should, make law. She puts race and sex above reason. And, she was nominated by a President more concerned about empathy than judgment.

Her nomination was an important one – even as conservatives, including a few Republicans, have been fighting a war on multiple fronts, from health care to economics, national defense to abortion, and much more. But the composition of the Supreme Court has as much or more effect – especially in the long run – on our ability to live free from the strong arm of government as any of the branches or levels of our federal (that is, national, state and local) system… which should tell you all you need to know about the state of things.

Justice Sotomayor’s confirmation also raised the issue of the current courtship of the Hispanic population by both democrats and republicans. The media and many democrats will try to make this an anti-Hispanic vote – and indeed, already are trying to do so. So, it was incumbent upon Republicans, at this critical moment in history, to make the case against Sotomayor based on her views, not her race, and to, perhaps more importantly, begin to establish a clear standard for all future nominees.

How did they do? On the whole, they fared much better than expected (partly because we expect so little), but not as good as they should have. Overall Grade: C+.

The Great: A+… Candidate Marco Rubio, and, surprisingly, John McCain.
The Good: B… Mitch McConnell, Jeff Sessions, Jon Kyl, John Cornyn and a few others
The Bad: C… That same leadership did not extend to a Republican Conference-wide, all-hands-on-deck effort to make the case loudly and clearly
The Ugly: F… Race and the National Rifle Association.
The Pathetic: No grade warranted… Lamar Alexander, Lindsey Graham and the other Republicans who discarded principle to vote to confirm

In detail:

The Great: A+… Candidate Marco Rubio, and, surprisingly, John McCain. As a candidate for U.S. Senate in Florida, Rubio exhibited the characteristic of leadership – unlike his challenger, Governor Crist, who took the easy road… pandering and equivocation. Rubio issued a statement worthy of reading, but of note he said:

In evaluating judicial nominees, what matters most is determining what kind of judges they will be. And nominees who share Sotomayor’s view that their role is to make law rather than interpret it are individuals I cannot support and would urge others not to, as well.

And…

In the final analysis, we are not worthy of Hispanics’ trust or the support of any other Americans if we abandon our principles or cease articulating our philosophical disagreements on the role of the judiciary. I would rather lose an election than diminish the rights afforded by the Constitution. By consenting to a judge whose record demonstrates an inclination to set policy from the bench, we would be undermining our governing document.

Senator McCain likewise made the appropriate and well stated point that Justice Sotomayor’s activist views, by definition, means that she is not qualified for the bench. Indeed, this should be what we refer to from this point forward as the “Republican Standard.”

The Good: B… Mitch McConnell, Jeff Sessions, Jon Kyl, John Cornyn and a few others did a fairly decent job in asking tough questions, making a good case against her based on her past statements and positions, and by opposing her fairly early. Republicans garnered 31 votes against Judge Sotomayor, compared to 3 against known activist, Ruth Bader Ginsburg and 9 against Steven Breyer. It is especially encouraging that new Republican leadership member, Lisa Murkowski, voted against her confirmation.

The Bad: C… That same leadership did not extend to a Republican Conference-wide, all-hands-on-deck effort to make the case loudly and clearly, because Institutional Republicans still feel the need to pander when it involves race – particularly when it involves Hispanics. That is stupid and short-sighted – and because of it, Republicans left too much for democrats and the media to fill in.

The Ugly: F… Race and the National Rifle Association. Justice Sotomayor is lauded as the first Hispanic Supreme Court Justice, leaving one to wonder when a Justice will be lauded for being, simply, a great Justice. Race, seemingly, is not just a characteristic here, but seemingly a central aspect of Justice Sotomayor’s being. Her comments about a “wise Latina woman,” and her actions with respect to race issues in the CT firefighter (Ricci) case in Connecticut, are troubling to say the least. As Chief Justice Roberts presciently stated, “it’s a sordid business, this divvying us up by race.”

The National Rifle Association is a shell of its former self. It is well known among Republican Capitol Hill staffers – and the few members willing to admit it – that the NRA refuses to take any tough stances and plays politics more than it stands on principle. The NRA had to be taken to the woodshed to actually take a position on Justice Sotomayor, and even when it did, it basically sat on the sidelines, hiding behind a letter sent up to the Hill expressing concerns and a threat to “score” the vote. Their website was, effectively, silent. There were not great efforts made. Meanwhile, the organization truly dedicated to protecting gun owners’ rights – Gun Owners of America – not only fights for the 2nd Amendment, but also plays ball on healthcare and other important issues relating to our freedom from an expansive, intrusive government.

The Pathetic: No grade warranted… Lamar Alexander, Lindsey Graham and the other Republicans who discarded principle to vote to confirm. No need to expand, frankly. Useless does not even begin to describe their contribution to the future of the Republican Party and actually thinking instead of pandering.

Yesterday, in announcing his intention to vote against the confirmation of Judge Sotomayor, the Senator outlined - as clearly and succinctly as anyone has - the conservative rationale for opposing her. His entire statement can be found here, but it is summed up nicely in his closing paragraph:

“Judicial activism demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And, as I stated earlier, regardless of one’s success in academics and in government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench. For this reason, and no other, I am unable to support Judge Sotomayor’s nomination.”

THAT is the argument. Her openly activist views do, in fact, disqualify her for the Court. It is not, as some have wrongly stated, enough that she is “qualified” in the academic sense. And it is critical that Republicans echo these sentiments loudly and clearly - because doing so will both beat back false accusations of anti-hispanic bias, and begin to clarify the Republican threshold for Judicial nominees.

It is also critical that the remaining uncommitted Republicans stay on the team. Currently, 27 Republicans are committed no-votes. 6 Republicans (Alexander, Collins, Graham, Lugar, Martinez, and Snowe) have already displayed their disrespect for the Constitution by announcing their support for Judge Sotomayor. That leaves 7 uncommitted members. They are: Barasso, Bond, Ensign, Enzi, Gregg, Murkowski, and Voinovich.

Barasso, Ensign and Enzi are traditionally among the more reliable Senators, but they have not yet announced their opposition. They should know their position by now and that position should be “nay.” And, no-votes from them would get Republicans to 30. That would be an impressive tally given the total of 3 and 9 votes registered against Clinton nominees Ginsburg and Breyer respectively, and would mean that 75% of Republicans opposed Sotomayor’s nomination.

Meanwhile, Senators Bond, Gregg and Voinovich each have a foot out the door and have not always proven as reliable - so Lord only knows how they will vote. That leaves Lisa Murkowski… the newest member of the GOP leadership team. And her vote will be an important early test. Will she follow conservative principle - or will she try to play politics?

We know the outcome of the nomination - but Republicans can use this as a teachable moment to make clear what they require of judicial nominees. John McCain made a great case and his fellow Republicans should follow.

But how Republicans handle the vote is critically important – both with respect to their ability to unify behind a coherent set of guiding principles, and because failure to express clear opposition to Sotomayor’s judicial philosophy will leave open the door for those who oppose her to be labeled racist and anti-hispanic.

Just as Senate Republican leadership was beginning to come together to make the case – behind the efforts of Sens. McConnell, Sessions, Kyl, Cornyn and others – along comes Lamar Alexander. The third-ranking Senate Republican this morning joined John McCain’s lap-dog (Lindsey Graham, if you had to ask…) to stick a knife in the back of Republicans, the Constitution and Conservatism by announcing his support for the nominee.

The man in charge of the Senate Republican Conference message – yeah, that’s right – is absolutely killing the message… a message that should resonate with many Americans… that Judges cannot make the law, that race should not inform an impartial judiciary and that the Constitution must be respected and followed.

Instead, in a patched-together and ill-informed floor statement (see unofficial full text below), Senator Alexander said he would vote to confirm Judge Sotomayor “[e]ven though her political and judicial philosophy may be different than [his], especially regarding Second Amendment rights.”

You know what Alexander cites as his rationale for believing Sotomayor would “decide cases with impartiality?” Because she told him so. Yeah. She said so in her hearing. OH! Ok, so if I go up to the Hill one day and tell a bunch of Democrat Senators that I believe the Constitution is advisory and that Judges should make law, they will just ignore my Federalist Society membership? Ignore my work and writings to the contrary over my whole life?

How can you say this stuff seriously on the floor of the United States Senate?

Even more, Alexander and Graham are two peas in a pod of uselessness – so wrapped up in their own self-importance and an over-inflated sense of “being above the partisan rancor” that they are letting out what air we have in the proverbial balloon and risking turning this into yet another political exercise instead of a strong stand on principle.

And this isn’t the only issue – no sir. How about the off-the-radar-but-you-better-keep-your-eye-on-it Wyden-Bennett healthcare bill? Erick covered Alexander’s support of that baby-killing, big-government bill here, along with a reminder of how quick Alexander is to throw Republicans under the bus in favor of making nice with Democrats – and Graham is right there with him. How about the bailouts? Check. How about earmarks and big spending? Check.

And what does this kind of ring-kissing get us? A favorable article by Dana Milbank in the Washington Post, in which Graham received this praise: “Over the white noise of charge and countercharge, only Lindsey Graham’s words soared”? This is precisely the kind of thing we were promised with John McCain as our nominee… that “things would be different,” that all the independents and moderates would come running to our cause… that the media would treat us better.

Yeah, right.

Alexander Floor Speech:

{10:00:55 NSP} (THE PRESIDING OFFICER) { NOT AN OFFICIAL TRANSCRIPT }
THE PRESIDING OFFICER: THE SENATOR FROM TENNESSEE.

{10:01:00 NSP} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
MR. ALEXANDER: THANK YOU, MADAM PRESIDENT. MADAM PRESIDENT, I
JUST — I HAVE A STATEMENT TO MAKE ABOUT THE PRESIDENT’S
NOMINATION OF JUDGE SONIA SOTOMAYOR TO BE ASSOCIATE JUSTICE OF
THE UNITED STATES SUPREME COURT. EVEN THOUGH JUDGE SOTOMAYOR’S
POLITICAL AND JUDICIAL PHILOSOPHY MAY BE DIFFERENT THAN MINE,
ESPECIALLY REGARDING SECOND-AMENDMENT RIGHTS, I WILL VOTE TO
CONFIRM HER BECAUSE SHE IS WELL-QUALIFIED BY EXPERIENCE,
TEMPERAMENT, CHARACTER, AND INTELLECT, TO SERVE AS AN ASSOCIATE

{10:01:31} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
JUSTICE OF THE UNITED STATES SUPREME COURT. IN 2005, I SAID ON
THIS FLOOR THAT IT WAS WRONG FOR THEN-SENATOR OBAMA AND HALF
THE DEMOCRATIC SENATORS TO VOTE AGAINST JOHN ROBERTS, A
SUPERBLY QUALIFIED NOMINEE, SOLELY BECAUSE THEY DISAGREED WITH
WHAT SENATOR OBAMA DESCRIBED AS ROBERTS’ — QUOTE –
“OVERARCHING POLITICAL PHILOSOPHY” AND HIS — QUOTE — “WORK IN
THE WHITE HOUSE AND THE SOLICITOR GENERAL’S OFFICE THAT

{10:02:03} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
CONSISTENTLY SIDED WITH THE STRONG IN OPPOSITION TO THE WEAK.”
UNQUOTE. TODAY IT WOULD BE EQUALLY WRONG FOR ME TO VOTE AGAINST
JUDGE SOTOMAYOR SOLELY BECAUSE SHE’S NOT ON MY SIDE ON SOME
ISSUES. COURTS WERE NEVER INTENDED TO BE POLITICAL BODIES
COMPOSED OF JUDGES ON YOUR SIDE WHO WOULD RELIABLY TILT YOUR
WAY IN CONTROVERSIAL CASES. COURTS ARE SUPPOSED TO DO JUST

{10:02:35} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
THE OPPOSITE: DECIDE DIFFICULT CASES WITH IMPARTIALITY. THE
OATH THAT JUDGE SOTOMAYOR HAS TAKEN TWICE AND WILL TAKE AGAIN
WHEN SHE’S SWORN IN AS ASSOCIATE JUSTICE OF THE SUPREME COURT,
SAYS IT BEST, AND I QUOTE

IT: “I WILL ADMINISTER JUSTICE WITH RESPECT TO PERSONS AND DO
EQUAL RIGHT TO THE POOR AND TO THE RICH, AND I WILL FAITHFULLY
AND IMPARTIALLY DISCHARGE AND PERFORM ALL DUTIES INCUMBENT UPON
ME UNDER THE CONSTITUTION AND THE LAWS OF THE UNITED STATES.”

{10:03:07} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
END OF QUOTE. NOW, DURING HER CONFIRMATION HEARINGS, MADAM
PRESIDENT, JUDGE SOTOMAYOR EXPRESSLY REJECTED THEN-SENATOR
OBAMA’S VIEW THAT A CERTAIN PERCENTAGE OF JUDICIAL DECISIONS –
THAT IN A CERTAIN PERCENTAGE OF JUDICIAL DECISIONS — QUOTE –
“THE CRITICAL INGREDIENT IS SUPPLIED BY WHAT’S IN A JUDGE’S

{10:03:40} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
HEART AND IN THE DEPTH AND BREADTH OF ONE’S EMPATHY.” UNQUOTE.
IN ANSWER TO A SENATOR FROM SENATOR KYL SHE SAID IN HER
CONFIRMATION HEARING, AND I WILL QUOTE THAT AS WELL, “I CAN
ONLY EXPLAIN WHAT I THINK JUDGES SHOULD DO, WHICH IS JUDGES
CAN’T RELY ON WHAT’S IN THEIR HEART.” THIS IS JUDGES SOTOMAYOR
SPEAKING. “THEY DON’T DETERMINE THE LAW. CONGRESS MAKES THE
LAWS. THE JOB OF A JUDGE IS TO APPLY THE LAW. AND SO IT’S NOT
THE HEART THAT COMPELS CONCLUSIONS IN CASES, IT’S THE LAW, AND

{10:04:11} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
THE JUDGE APPLIES THE LAW TO THE FACTS BEFORE THAT JUDGE.” THAT
WAS JUDGE SOTOMAYOR’S ANSWER TO SENATOR KYL. GIVING BROAD
SENATE APPROVAL TO OBVIOUSLY WELL-QUALIFIED NOMINEES HELPS TO
INCREASE THE PRESTIGE OF THE SUPREME COURT AND TO CONFIRM ITS
IMPARTIALITY. FOR THAT REASON, UNTIL THE LAST FEW YEARS,
REPUBLICAN AND DEMOCRATIC SENATORS, AFTER RIGOROUS INQUIRIES
INTO THE FITNESS OF NOMINEES, USUALLY HAVE GIVEN THOSE
WELL-QUALIFIED NOMINEES AN OVERWHELMING VOTE OF APPROVAL. FOR

{10:04:46} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
EXAMPLE, NO JUSTICE ON THE SUPREME COURT THAT JOHN ROBERTS
JOINED IN 2005 HAD RECEIVED MORE THAN NINE NEGATIVE VOTES. FOUR
WERE CONFIRMED UNANIMOUSLY. ALL BUT THREE REPUBLICAN SENATORS
VOTED FOR JUSTICE GINSBURG, A FORMER GENERAL COUNSEL OF THE
AMERICAN CIVIL LIBERTIES UNION. EVERY SINGLE DEMOCRATIC SENATOR
VOTED TO CONFIRM JUSTICE SCALIA. NOW IN TRULY EXTRAORDINARY
CASES SENATORS, OF COURSE, RESERVE THE PREROGATIVE, AS I DO, TO

{10:05:21} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
VOTE “NO” OR EVEN TO VOTE TO DENY AN UP-OR-DOWN VOTE. DURING
THE EIGHT YEARS I WAS GOVERNOR OF TENNESSEE, MADAM PRESIDENT, I
APPOINTED ABOUT 50 JUDGES. IN DOING SO, I LOOKED FOR THE SAME
QUALITIES THAT JUSTICE ROBERTS AND JUDGE SOTOMAYOR HAVE

DEMONSTRATED: INTELLIGENCE, GOOD CHARACTER, RESTRAINT, RESPECT
FOR LAW, AND RESPECT FOR THOSE WHO CAME BEFORE THE COURT. I DID
NOT ASK ONE APPLICANT HOW HE OR SHE WOULD RULE ON ABORTION OR
IMMIGRATION OR TAXATION. I APPOINTED THE FIRST FEMALE CIRCUIT

{10:05:56} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
JUDGE IN OUR STATE AND THE FIRST AFRICAN-AMERICAN COURT
CHANCELLOR AND THE FIRST AFRICAN-AMERICAN STATE SUPREME COURT
JUSTICE. A POINTED BOTH — I APPOINTED BOTH DEMOCRATS AND
REPUBLICANS. THAT PROCESS SERVED OUR STATE WELL AND HELPED TO
BUILD RESPECT FOR THE INDEPENDENCE AND FAIRNESS OF OUR
JUDICIARY. IN THE SAME WAY, IT IS MY HOPE THAT MY VOTE NOW WILL
NOT ONLY HELP TO CONFIRM A WELL-QUALIFIED NOMINEE BUT WILL HELP

{10:06:31} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
TO RETURN THE SENATE TO THE PRACTICE ONLY RECENTLY LOST OF
INQUIRING DILIGENTLY TO THE QUALIFICATIONS OF A NOMINEE AND
THEN ACCEPTING THAT ELECTIONS HAVE CONSEQUENCES, ONE IS TO
CONFER UPON THE PRESIDENT OF THE UNITED STATES THE
CONSTITUTIONAL RIGHT TO APPOINT JUSTICES OF THE SUPREME COURT.
I ASK THAT MY STATEMENT ON JUSTICE JOHN ROBERTS BE PRINTED IN

{10:07:03} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
THE RECORD AFTER THESE REMARKS.

{10:07:05 NSP} (THE PRESIDING OFFICER) { NOT AN OFFICIAL TRANSCRIPT }
THE PRESIDING OFFICER: WITHOUT OBJECTION, SO ORDERED.

{10:07:06 NSP} (MR. ALEXANDER) { NOT AN OFFICIAL TRANSCRIPT }
MR. ALEXANDER: I SUGGEST THE ABSENCE OF A QUORUM.

Well, it didn’t take long, Senator. Here we are. And in a moment of clarity - you remind us, yet again - of the cancer in the Republican Party that is responsible to bringing us from 55 members to 40 in a little over two years. You are a pathetic excuse for a Senator… Incapable of maintaining an ounce of principle in your decisions - and giving up the game that your motives are entirely political.

You needn’t reach any question beyond that of whether Judge Sotomayor would be an activist judge. While she (unconvincingly) tried to sound like Justice Scalia at her confirmation hearing, when the spotlight was not on her in years past, she, by her own arrogant comments, mocked the idea that Courts should not make law. Everything else is academic.

A vote for Judge Sotomayor is a vote against the Constitution and against conservatism.

Senator Graham, you have made your position crystal clear.

NOTE: It should be noted how bad Graham’s vote truly is in light of the fact two old bulls, Senators Grassley and Hatch, in particular, found it necessary to vote against the President’s nominee. Mike gamecock Devine has posted on this topic here and throughout his diary.

This is a real test. But the test is not for Ms. Sotomayor. The test is for Republicans.

In the 1990’s, President Clinton had two opportunities during his tenure to replace Supreme Court Justices - and his picks were the obviously liberal and activist judges, Ruth Bader Ginsburg and Stephen Breyer. These two Justices received precisely 3 and 9 Republican “no” votes, respectively. That was pathetic, given the extent to which Republicans then knew full well that each of these Justices would often times ignore their role to interpret the law in order to seek an outcome based on some other rationale… say, “empathy,” or what is “in their hearts.”

Today and in the coming days, Republicans can choose how to approach the confirmation question of Judge Sotomayor and their decision will say a lot about whether the Republican Party, as a whole, has any fight left in it…

There is no good reason to for any Republican - or any Senator who values the Constitution and the role of judges to, in the words of Chief Justice John Roberts, “call balls and strikes” as an umpire - to vote to confirm Judge Sotomayor given her very public pronouncements on the role of activists judges and her quite apparent penchant for ruling on issues of race with a personal or policy purpose in mind rather than basing her decision on the law and believing her race and sex make her a better judge.

The world is watching, yes. But, conservatives who believe the Republican Party has lost its way in recent years are watching this hearing particularly closely… to see whether Republicans are on the right road - whether they have an ounce of core beliefs that can serve to provide backbone and a will to fight.

This is an easy test. Let’s see if they pass it.

This is not unusual. It is the M-O of liberals… they’re all for the “little guy” as a political poster-child, but they simply don’t bat an eye at running over him if it’s necessary to accomplish their agenda.

Mr. Ricci, whatever his past may reveal, is a private citizen who had his day in court… but not just any court, he had his day in the United States Supreme Court, and he won. And now liberal special interest groups want to go after HIM - personally - simply because Judge Sotomayor wrote a lousy opinion with her colleagues and now is getting repudiated for its foolishness.

Republicans should object strongly to these types of personal attacks… and so should Judge Sotomayor.

Next week, we will find out if she will.

July 10, 2009: What is Judge Sotomayor’s judicial philosophy?
July 9, 2009: What is the proper role of judges in defining marriage and the family?
July 8, 2009: What limits does the First Amendment impose on campaign finance regulation?
July 7, 2009: Should constitutional interpretation resemble common law decision-making?

To view all twenty questions posed by the Senator, click here.

Question of the Day: July 10, 2009
What is Judge Sotomayor’s judicial philosophy?

Explanation: For the last few weeks, I have posted a daily question for Judge Sotomayor about her record and her views on the law and the Constitution. My questions have focused on a core set of questions: What is Judge Sotomayor’s judicial philosophy? How would she interpret the law? What is the proper role of the Supreme Court in a democratic society?

I have asked these questions to help make the confirmation process transparent and respectful. Every Supreme Court nomination calls on the U.S. Senate to examine the nominee’s record in depth. I have looked closely at Judge Sotomayor’s record in the last few weeks. Through these daily questions, I have been open about my views, my hopes, and my concerns that are raised by Judge Sotomayor’s record.

The hearings for Judge Sotomayor will begin next Monday, just three days away. Judge Sotomayor will finally have an opportunity to answer these and other questions. I hope Judge Sotomayor will answer the questions I have posed with the same spirit of transparency and openness in which I have asked them.

Question of the Day: July 9, 2009
What is the proper role of judges in defining marriage and the family?

Explanation: The definition of marriage and the law of the family traditionally have been questions for legislatures. In recent years, however, the power of the people to define marriage and the family through the elected branches has been challenged.

Just yesterday, Massachusetts Attorney General Martha Coakely filed suit against the federal government seeking to have the Defense of Marriage Act struck down as unconstitutional. The Defense of Marriage Act was enacted by Congress in 1996 and was signed by President Clinton. The Act states that for purposes of federal law, marriage means only a legal union between one man and one woman as husband and wife. The Act also preserves the rights of the several states to recognize, or not recognize, marriage licenses issued by other states.

Judge Sotomayor does not have a record on the role of the courts in defining marriage and the family. However, she has celebrated the idea that “change – sometimes radical change—can and does occur in a legal system that serves a society whose social policy itself changes.” See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996-1997). The context of her comment suggests that this “radical change” comes from the courts.

The upcoming hearings will give Judge Sotomayor an opportunity to explain her view of the role of the courts in defining marriage and the family. I hope she will affirm the principle that the authority to define marriage and the family rests with the legislature and not the judiciary.

Question of the Day: July 8, 2009
What limits does the First Amendment impose on campaign finance regulation?

Explanation: The First Amendment protects the right of individuals to support political campaigns as well as the right of political campaigns to spend money to get out their message. The First Amendment’s limitations reflect the reality that political speech is core First Amendment speech.

In a 1996 article, however, Judge Sotomayor appeared to lament this kind of political speech. She analogized campaign contributions to bribes and urged the passage of “strict” campaign finance laws:

Can elected officials say with credibility that they are carrying out the mandate of a ‘democratic’ society, representing only the general public good, when private money plays such a large role in their campaigns? If they cannot, the public must demand a change in the role of private money or find other ways, such as through strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced in their legislative or executive decision-making by the interests that give them contributions.

Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 42 (1996)

Judge Sotomayor’s apparent endorsement of strict campaign finance regulation fairly raises the question of how she would square her policy views with the requirements of the First Amendment. In the upcoming hearings, I hope Judge Sotomayor will explain her views of the First Amendment and the constitutionality of campaign finance regulations.

Question of the Day: July 7, 2009
Should constitutional interpretation resemble common law decision-making?

Explanation: Judge Sotomayor has written that “the law” is uncertain and in a necessary state of flux. See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 37 (1996-1997). Judge Sotomayor has noted that “the very nature of our common law is based upon the lack of certainty,” and she has suggested that what is true for “the common law” is true for the rest of law. Id.

In my view, Judge Sotomayor’s view of “the law” mistakenly assumes that all legal decisionmaking is like common law decisionmaking. It is not. As lawyers know, the common law refers to judge-made law that the colonists inherited from England in a period before a written Constitution. Common law judging requires judges to make the law because the judiciary is the only legal institution involved.

The work of our federal courts is very different. As the Supreme Court stated back in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), “[t]here is no federal general common law.” The role of federal courts and the Supreme Court primarily involves interpreting written text such as statutes and the Constitution. The role of courts is much narrower in our system because the judges are not tasked with the job of making the law. As a result, the proper work of a federal judge is very different from a common law judge. While a common law judge can make the law, a federal judge can only interpret the law enacted by the elected branches.

At her hearings next week, I hope Judge Sotomayor can explain her vision of judging. I hope she will explain the difference between common law judging and interpreting a written constitution, and the much narrower role of judges that the latter requires.