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Yoo on Sotomayor: No Threat to the Revolution

7:07 PM, May 26, 2009 • By MICHAEL GOLDFARB
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John Yoo says she's not a threat to the revolution:

Obama had some truly outstanding legal intellectuals and judges to choose from-Cass Sunstein, Elena Kagan, and Diane Wood come immediately to mind. The White House chose a judge distinguished from the other members of that list only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.

Sotomayor's record on the bench, at first glance, appears undistinguished. She will not bring to the table the firepower that many liberal academics are asking for. There are no opinions that suggest she would change the direction of constitutional law as have Antonin Scalia and Clarence Thomas on the Supreme Court, or Robert Bork and Richard Posner on the appeals courts. Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.

But conservatives should not be pleased simply because Sotomayor is not a threat to the conservative revolution in constitutional law begun under the Reagan administration. Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings.

If there is an upside here for conservatives, Yoo has zeroed in on it: Sotomayor is not going to be a rallying point for the left, and she is not going to persuade anyone on the right. She will, presumably, be a reliable liberal vote -- nothing more, nothing less. Conservatives could have done much worse, but we're getting a liberal Harriet Miers instead of a liberal Alito. The real danger for conservatives is that Sotomayor becomes a Hispanic icon who's seen as being unfairly maligned by Republicans. That could further alienate Hispanics from the party and do lasting damage to the conservative revolution in ways that Sotomayor herself never could.