Sotomayor’s Nomination Approved by the Senate Judiciary Committee:

To no one’s surprise, Sonia Sotomayor’s nomination to the Supreme Court was approved by the Senate Judiciary Committee today, on a near party-line 13-6 vote (one Republican senator, Lindsey Graham, broke with his party and supported Sotomayor despite expressing serious reservations about her).

Despite this nearly-inevitable outcome, the hearings were far from a total loss for those of us who have serious doubts about Sotomayor’s judicial philosophy and that of the president who selected her. Under questioning, Sotomayor was forced to repudiate two major precepts of liberal constitutional jurisprudence: reliance on “empathy” to help decide many important cases, and the use of international law as a tool for interpreting the US Constitution (except in very narrow and uncontroversial contexts, such as treaty interpretation). It’s not every day that a Supreme Court nominee explicitly repudiates a central tenet of the judicial philosophy of the president who nominated her as clearly as Sotomayor did with empathy by stating that she “wouldn’t approach the issue of judging in the way the president does.” These concessions will make it harder for liberal jurists and political leaders to advocate empathy and international law in the future. If these liberal legal principles can’t be openly defended by a minority nominee with an inspiring personal story, backed by a popular president, and facing an overwhelmingly Democratic Senate, it’s not clear when they can be.

In addition, the hearings focused on property rights to a far greater extent than any previous Supreme Court confirmation fight. Both Republican and Democratic senators raised these issues. Senator Jeff Sessions, the ranking Republican on the Committee, even went so far as to list Sotomayor’s notorious anti-property rights decision in Didden v. Village of Port Chester, first among the dubious rulings justifying his vote against her nomination (I discussed Didden in this op ed, and much more extensively in my testimony before the Committee). All of this is an important step forward for those who want to raise constitutional property rights up from their current “poor relation” status in the federal judiciary. It marks the rise of property rights as an important enough issue that every nominee to the nation’s highest court must at least consider them.

Overall, Judge Sotomayor’s supporters have good reason to be happy with today’s outcome, and she herself deserves congratulations. But the tactics she and the administration adopted to win this battle could make it harder for them to prevail in the longterm war over the future of constitutional law.

NOTE: My linking of Senator Sessions’ op ed doesn’t necessarily imply agreement with everything he said there. For example, I think it is unfortunate, though understandable, that he cast his objections to Sotomayor as a a critique of her “judicial activism” – a term that I think has lost most of its intellectual coherence. I cite the op ed only because it is one of several indications of the rising prominence of property rights issues during the hearings.