08/14/2009 05:12 am ET | Updated May 25, 2011

The Republicans, Sotomayor, and Cheney

I am so confused. I have long stood in awe of Republicans as political strategists. The brilliant team that designed Ronald Reagan's strategy; Lee Atwater, Karl Rove -- I might not have agreed with them, but if winning is all you care about, they were good. I think Mary Matalin is every bit as smart as James Carville (and okay, I like everyone else would give anything to be a fly on the wall in their home for just one day -- how can they possibly get along at home?).

But these last weeks have not been good ones for Republicans, and their responses to events have baffled me. Let's not even dwell on the sexual peccadilloes -- but honestly, how can they not have dropped Ensign and Sanders like hot potatoes? I'll even leave Palin alone, though again, how can her actions possibly be explained as good politics -- for her or the GOP?

The Sotomayor hearings are a different matter. Texas Senator John Cornyn has said that the Republicans will not go to the wall against her -- because they do not have the votes. He is right; they don't have the votes, but that is beside the point. The point is that she is going to be confirmed -- and should be confirmed -- because she has the experience and intelligence to do the job well. Those who oppose her are going to go down as having opposed the first Latina woman ever nominated for the Court. If virtually all of the opposition comes from the Republican party, a party that has already lost much of the Hispanic vote, the fastest increasing segment of the population, it seems likely to me that GOP electoral prospects in 2010 and 2012 will be hurt. Where are the GOP strategists calling for political sanity?

The dialogue between Judge Sotomayor and Senator Jeff Sessions (remember him -- he was William Jefferson Sessions III when he was rejected as a nominee for the U.S. District Court; his name has been popularized but his views have not) is indicative. Sessions questioned Sotomayor strongly on differences between speeches she has given and views expressed in her opening statement. In each case -- and I believe there were nine -- Sotomayor gave a logical explanation, and Sessions rejected it out of hand. To be sure, Sotomayor's opening statement and explanations involved backtracking on her previous views. But everyone in the room knew that. Everyone also knew that her earlier statements were rhetorical flourishes aimed at a specific audience. Everyone also knew that every politician and every judicial nominee has made such statements. And everyone knew Sessions was not going to score any points with his questioning.

I don't say he should not have challenged her. Senators can and should question Supreme Court nominees closely. Senator Orrin Hatch did so in the opening day's questioning -- pressing Sotomayor on 2nd amendment questions. That was appropriate questioning and did not give the appearance of gotcha politics, as Sessions' questioning did.

But Sessions' repetition seemed like piling on. What was the point? Was he trying to catch her in a contradiction? To gain an admission? To score points back home? To convince Democrats that she was a flawed nominee? I simply was confused. Politically, the GOP has to recognize who won the last election and why. They do not seem to do so.

The GOP response to the Cheney affair puzzles me in the same way. Vice President Cheney ordered the CIA to keep information about a secret counter-terrorist project from the Congress, including from the Intelligence Committees. The project itself was not the problem; the secrecy was.

The project involved designing plans, immediately after 9/11, to assassinate Al Qaida terrorist leaders, even if they were found in nations that objected to our pursuing targets on their soil. The legality of this project is questionable, but one can argue that President Ford's executive order prohibiting such assassinations does not apply in time of war and that we were in a war-like situation in the immediate aftermath of the attack on our nation.

The point, however, is that such decisions are not for the executive branch to make alone. The mechanism of consulting with a small subset of members of Congress, to gain approval or at least to provide notification, was established in order to avoid any publicity for secret plans while at the same time complying with the constitutional mandate of separation of powers. Cheney deliberately kept the Congress in the dark for political reasons, not legal reasons.

Now the GOP is defending him. Again, I don't get it. This case is clearly one of legislative prerogative. What is in question is not the specific project but rather whether the executive branch -- on order from the Vice President -- can ignore the law and essentially violate the Constitution's most basic principle. I don't understand why Republican Senators are taking an unpopular political position -- defending Vice President Cheney for exactly the kind of action that has made him one of the most unpopular political figures in the nation -- rather than defending both the project (if they approve of it) and the power of the legislature.

Republicans are complaining about a filibuster proof Senate, with the seating of Senator Al Franken as the 60th Democratic vote. The fear the Democrats can run rampant is unfounded -- because on many controversial issues the Democrats are not united and two of the 60 votes are less than secure due to the illnesses of Senators Kennedy and Byrd -- but from my perspective, recent action of GOP Senators seems likely to lead to that number 60 increasing, not decreasing after 2010. And I don't understand how Republican strategists have not been manning the phones to make that point.

L. Sandy Maisel is director of the Goldfarb Center for Public Affairs and Civic Engagement at Colby College.