The Obama administration and the progressive left is making
much of Supreme Court nominee Sonia Sotomayor’s ethnic background and gender,
effectively making them relevant qualifications for the a seat on the Court.
Indeed, her comment — “I would hope that a wise Latina woman, with the richness
of her experiences, would more often than not reach a better conclusion than a
white male who hasn’t lived that life” – might come to dominate her confirmation hearing.

Predictably, conservatives have jumped on that remark, making
the point that the statue of Lady Justice is appropriately blindfolded, that a
judge is supposed to adjudicate the law as it is written, not make policy from the bench. Conservatives have resurrected their fidelity to the text of the
Constitution in the face of Sotomayor’s clear “living Constitution”
jurisprudence.

In those arguments, conservatives, as correct as they are,
are missing a key point: The ideal of federalism has changed. Federalism is no
longer thought of as a division of power between the federal government and the
states; federalism is now accepted as a balance of power among various interest
groups administered by the federal government. In that context, group
representation is power, and balance requires every group be represented. In
that context, we “need” an Hispanic woman on the Court.

In my Pioneer Press column
this week I wrote about interest-group liberalism – a political philosophy
accepted by both Democrats and Republicans, liberals and conservatives and the
majority of Americans. Both left and right have accepted the two fundamental
principles of interest-group liberalism: Government is a positive force and a
champion of good, and virtually all interest-group demands are legitimate. What
that means is when push comes to shove, despite the rhetoric, Democrats and
Republicans are more interested in delivering for their constituencies than
standing on principle, the blindfolded lady notwithstanding.

Case in point: the “Job Creation through Entrepreneurship
Act” ensures benefits for veterans and small business – two conservative
interest groups. It also includes benefits for women and Native American
businesses and establishes a new grant program for Small Business Development
Centers. A little something for everyone. The bill passed the House 406-15.

Wouldn’t a truly neutral judge, based on the Constitution,
invalidate a law that used public funds to create private benefits for multiple
interest groups by expanding the federal bureaucracy and deficit spending? Yet
all but 15 Republicans voted for it.

The Sotomayor confirmation may well be beyond GOP control;
what GOP legislators vote for is certainly not. Eyes, beams and specks come to
mind.