Beyond the Spin: Ideology plays key role in high court picks

Before Sonia Sotomayor, President Obama's choice to fill a vacancy on the U.S. Supreme Court, could get outside the White House gate after the announcement of her nomination, conservatives were already on the attack.

"Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal agenda is more important than the law as written," said Wendy E. Long, counsel to the conservative Judicial Confirmation Network.

This nomination isn't about whether Sotomayor is qualified to sit on the nation's highest court but whether conservatives will get a candidate on the bench who shares their political viewpoint. In fact, they were already poised to oppose any Obama nominee. Ten memorandums from conservative organizations obtained by the New York Times provided the details.

According to the memos, had Appeals Court Judge Diane P. Wood been chosen, she would have been depicted as an outspoken supporter of "abortion, including partial-birth abortion." If Kathleen M. Sullivan, a law professor at Stanford University, had been selected, she would have been derided as a "prominent supporter of homosexual marriage."

Obama and his critics agree, in the words of the president, that judges should have "an understanding that a judge's job is to interpret, not make, law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent; and a determination to faithfully apply the law to the facts at hand."

Senate Minority Leader Mitch McConnell (R., Ky.) said in a statement: "We will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law evenhandedly, despite their own feelings or personal or political preferences."

Sotomayor has been confirmed as a district judge and as an appellate judge, so there should be no question about whether she understands the role of a jurist. It strikes me as condescending that senators who've never presided over a trial in small-claims court are eager to tell this accomplished woman how judges should behave on the bench.

The truth is that Republicans and Democrats are being less than candid when they give the impression that they prefer judges who operate in a sterile chamber, handing down opinions that do not take into account political considerations.

Of the nine current Supreme Court justices, seven were appointed by conservative Republican presidents. Only Ruth Bader Ginsburg and Stephen G. Breyer, both selected by President Bill Clinton, were appointed by a Democrat. Of 110 Supreme Court justices who have served since 1789, only two have been women and two African American. If confirmed, Sotomayor would be the first Hispanic.

Led by the Federalist Society, conservatives have spent the last three decades reshaping the judiciary, beginning with law students and professors on college campuses and extending to the federal bench at every level. When Obama was sworn in, Republican-appointed judges held 54 percent of the District Court judgeships and 56 percent of the seats on the Courts of Appeals, according to the National Journal.

Robert Carp, a professor of political science at the University of Houston and author of a study titled "The Voting Behavior of George W. Bush's Judges: How Sharp a Turn to the Right?" said Bush appointed the most conservative judges on record when addressing such issues as civil rights and civil liberties.

"Our findings are significant because the general consensus is that President Reagan is the most modern conservative president on record, and yet the judges appointed by George W. Bush are even more conservative than the Reagan judges," Carp told reporters.

And whether a judge is appointed by a Democrat or a Republican makes a difference.

In a study titled "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation" published in the Virginia Law Review, the authors - Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman - observed that in 4,400 legal opinions involving politically sensitive issues, appeals judges usually decided cases in line with the philosophical position of the party that appointed them.

"From 1980 through 2002, Republican appointees cast 267 total votes, with 127, or 48 percent, in favor of upholding an affirmative-action policy. By contrast, Democratic appointees cast 198 votes, with 147, or 74 percent, in favor of upholding an affirmative-action policy. Here we find striking evidence of ideological voting," the study found.

It concluded: "No reasonable person seriously doubts that ideology, understood as normative commitments of various sorts, helps to explain judicial votes. Presidents are entirely aware of this point, and their appointment decisions are undertaken with full appreciation of it."

Over the next few weeks, we will hear from both sides of the political aisle that the Senate confirmation of Sonia Sotomayor is about judicial temperament, not ideology. Don't believe them - it's about both.