For decades now, we have been living with 5 to 4 decisions by the Supreme Court. We typically acknowledge that court is divided into two factions: the liberal side of the court and the conservative side of the court. With Associate Justice David Souter, who is generally considered as part of the liberal side of the court, President Obama nominated Judge Sonia Sotomayor to replace him. We have seen over the past few weeks the right-wing-o-sphere go crazy with their reaction to his nomination; indeed, their accusations that Sotomayor is a racist proves that the elite conservatives - such as those on talk-radio and the talking heads on the mainstream media - believe that Sotomayor will set back the anti-choice movement years, if not decades. Their belief is not without merit, though.
We have often mocked the elite conservatives and their followers for their completely unwarranted and ignorant distortions of Sotomayor's record. Perhaps this diary might explain why they are so frustated.
I don't pretend to be an expert of law, but I have been following this nomination rather closely. I hope this explains some of the mounting conservative frustration at Sotomayor's pick. Indeed, much of opposition to Sotomayor is very likely to be racism. I do think, however, conservatives realize that one of their bread and butter issues, taking away a woman's right to choose, will not be accomplished now for years, decades, or, perhaps, ever.
On the liberal side, we have Associate Justice John Paul Stevens, nominated by President Ford; Associate Justice Ruth Bader Ginsburg, nominated by President Clinton; and Associate Justice Stephen Breyer, also nominated by President Clinton. On the conservative side, we have Chief Justice John Roberts, nominated by President George W. Bush; Associate Justice Antonin Scalia, nominated by President Reagan; Associate Justice Clarence Thomas, nominated by President George H.W. Bush; and Associate Justice Samuel Alito, nominated by President George W. Bush. Associate Justice Anthony Kennedy, nominated by President Reagan, is considered the swing vote on the 5-4 decisions we've become accustomed to. Souter was generally considered part of the liberal side of the court.
Ever since Roe v. Wade was decide in 1973, conservatives have realized the only way to make abortion illegal once against is with the courts, notably the SCOTUS. Conservatives have also tried legislatively to chip away at the abortion laws in America to varying degrees of success; they succeeded in passing the Partial-Birth Abortion Ban Act, but they failed in defining a fetus as eligible for SCHIP. However, they know the only way to make abortion illegal is through the Supreme Court.
Ever since President Reagan nominated William Rehquist to be Chief Justice and Antonin Scalia to be an Associate Justice, it is clear that the conservative movement recognizes that the Supreme Court must be tipped in favor of conservative justices. Conservatives thought they had a victory when George H.W. Bush decided to nominate Souter to the court, at the request of Bush's Chief of Staff, John H. Sununu. Sununu had hoped that Souter's judicial philosophy would be in the mold of that of Scalia and other conservative justices. If that were the case, Souter would have shifted court to a 5-3 majority for the conservatives in favor of the conservatives after the nominations of Roberts and Alito. You can argue - quite accurately, in my opinion - that the decision to nominate a Scalia-like judge instead of Souter would have brought the end of Roe v. Wade after the nominations of Roberts and Alito. The reason I say after the nominations of Roberts and Alito is because Associate Justice Sandra Day O'Connor would never have turned over Roe v. Wade, effectively giving the court a 5-4 majority in favor of Roe v. Wade.
Even though the court today is seemingly in a 5-4 majority to protect Roe v. Wade, the decision in Gonzales v. Carhart shows that Justice Kennedy sees that restrictions on abortion rights are constitutional. I think that we can see from this that the precedent set by Roe v. Wade is extremely fragile.
With Sotomayor saying that she will protect this precedent, the court remains at a 5-4 majority in favor of protecting Roe. I cannot begin to imagine the consequences if John McCain was elected president last year. Now, it is possible that Souter may not have retired under a Republic president, but it is possible that either Scalia or Kennedy might have; I'm not saying because they don't want to be there, but they are in their mid-70s. Souter was so disgusted with the decision in Bush v. Gore that he might have made up his mind then to stick around until a Democrat was in office. However, it also possible that Justice Stevens may retire, as he's 89(!) and was nominated by Gerald Ford(!). If Stevens retired, and McCain was in office, it is likely that he would have appointed a justice that would have voted to overturn Roe - and it's likely that Roe would have been overturned.
With that, Sotomayor has set back conservatives back years since they will have to wait until another vacancy under a conservative Republican's presidency. It's unclear how long that will be; even if Obama somehow doesn't win reelection, it's conceivable and likely that Stevens will wait to retire under a Democratic president. It's also highly likely that Obama lasts until 2012, in which case I give it a 60-40 chance that Kennedy retires, resulting in a net loss for conservatives.
It's not about being an "activist" for Sotomayor. It's all about upholding Roe v. Wade. And that's what's making the right-wing elites upset - though, I'm pretty sure it's that and racism that's making the wingnuts that listen to the conservative elites all riled up.