The Courts and the Quest for Relevance

It was a good day for the American experiment, particularly for the least defined branch of the Federal Government.

Most notably, the first African American President nominated the first Latino woman to the bench of the Supreme Court.  More on this in a moment, but all patriots should feel affirmed in their faith in our Republic.  The system does work, and even the highest halls of government are open to our minorities.  Cynics everywhere should take note; things are not actually as bad as the failing newspapers suggest.  We are not in desperate straights; we do not require someone to save us.  While it would be foolish to suggest that there are no challenges to the cohesiveness of our society, it is equally foolish (and perhaps intentionally divisive) to insist that America is hopelessly divided by prejudice.

Only slightly less noteworthy is the news that the California Supreme Court upheld the will of the voters to legally define marriage as a relationship between a man and a woman.  Considering the battle that was waged over this issue last year, opponents and supporters alike should take heart; the court functioned as it was intended to, and did not assert it’s preferences in direct contradiction to the desires of the electorate.  The state voted and the issue was settled by the will of the people, and by a margin of 6 – 1 the court ruled that the people had the right to make this determination.

It was a landmark day, and one that Conservatives should reflect on as we launch into what looks to be quite a busy Summer.

The ramifications of President Obama’s choice for the replacement of Justice Souter are not earth-shattering.  It’s still early, but Justice Sotomayor looks to be an unsurprising pick from a President in a position to nominate and confirm almost anyone he fancied.  All accounts suggest that she’s a moderate Liberal judge, and is hardly a threat to all the last vestiges of Conservatism.  We could not have reasonably hoped for someone less liberal (in fact, her comparitively mild ideological stance is surprising, given that this is the President’s best opportunity to nominate and confirm a Justice of his choosing).  This is the natural result of losing an election, and there seems to be little sense in opposing it simply because it is not the Conservative choice.  Conservatives may be the Opposition Party at this point, but that hardly means we should oppose everything; a necessary step towards making our voices relevant in the marketplace once more is choosing carefully which debates we take on.

Giving Sotomayor a hard time because she’s the President’s choice would be a bad call.

Rather than taking up the clarion call for a battle we cannot win, we should focus on articulating the importance of the victory we have already achieved.  We should be happy that gay marriage was not legitimatized by the courts in California; however, we cannot assume that the matter is settled.  It is vitally important to understand the significance of this victory, and to figure out how to repeat it.  Conservative ideas, in this instance, persevered in the midst of a general rout of conservatism.  We achieved this unique accomplishment for three reasons: first, we made unexpected allies; second, we managed to frame the debate in terms that made our stance broadly acceptable; and third, we were able to use the rule of law to our best advantage.

The next round is already underway and the debate will rage on until it inevitably erupts onto the Federal stage (whether it should or not).  Conservatives will need to once again articulate why traditional marriage is a foundation stone to our society, and we will need to do it in a way that does not validate the argument that the issue stems from anti-gay bigotry.  Again, as the opposition party, it is necessary to pick our fights wisely and to conduct them with percision.  This is an issue worth pushing back on, and with the momentum from today’s victory we should begin to lay the ground work for the national discussion that will follow.

If Conservatism would win it’s way back into mainstream relevance, we must be prepared to offer reasonable, persuasive arguments to the nation for why we believe what we believe.  The time to start prepping for that challenge is now. ‘

  • evelynbakerlang

    My good Mulready,

    How do you see conservatives laying that foundation (for the national discussion to come about gay marriage)? And what constitutional arguments do you see for why the full faith and credit clause has yet to be invoked on the issue?