A clear path to the Supreme Court

There will be no filibuster of Judge Sotomayor’s nomination. That’s not an unreasonable result. The prevailing standard for a filibuster (to the extent there is a standard) requires that “special circumstances” be present. But Sotomayor is a garden-variety competent left-liberal appellate judge. Neither her left-liberalism nor her lack of excellence as a judge constitutes a special circumstance.

Sotomayor’s speeches in which she embraced judging that is not ethnic and/or gender neutral would be a special circumstance. But Sotomayor has disavowed such judging. Moreover, there is insufficient evidence that her judging has failed to be ethnic and/or gender neutral (which is not the same thing as saying that her judging is, in fact, neutral in these respects).

The closest thing I see to a special circumstance is the dishonest way in which Sotomayor testified about her speeches and related matters. But we are talking here about how to interpret a speech, not about a false statement about a straightforward factual matter.

If the Republican Senators were sufficiently disgusted with Sotomayor’s lack of candor to try and mount a filibuster, I wouldn’t be opposed. But I don’t think that her lack of candor compels them to filibuster, an effort that would be futile in any event.

Voting for Sotomayor is another matter. Even in the absence of her speeches and her lack of candor, Sotomayor’s left-liberal judging should cause conservative Senators to vote “no” (and moderate Senators strongly to consider voting “no”) under existing standards.

UPDATE: Senate Minority Leader McConnell has announced that he will vote against confirming Sotomayor.


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