Three good articles worth reading today about the Obama administration's push to repeal the ban on open homosexuals serving in the military:

Mac Owens at NRO, rebutting critics of his recent Wall Street Journal piece;

Dennis Prager, also at NRO, noting how impoverished are the insults and imprecations of Frank Rich of the New York Times;

And Carson Holloway, getting to the bottom of things at Public Discourse, with a thoughtful reflection on where anyone gets the idea of a "right" being at stake in this debate.

The ACLU comes out against a college instructor's free speech in the classroom.

Oh.  He's a religious conservative.  Maybe this isn't news after all.

In today's Wall Street Journal, Patrick J. Reilly of the Cardinal Newman Society comments on the Equal Employment Opportunity Commission's ruling that Belmont Abbey College in North Carolina is violating federal law by not including payment for prescription contraceptives in its employee health care coverage.

This case was closed with no action taken against the college back in March.  Am I the only one who thinks there is no coincidence in its being reopened with President Obama and the Democrats in charge?

The Senate is scheduled to vote on the Supreme Court nomination of Judge Sonia Sotomayor today at 3:00 p.m.  Ed Whelan at NRO's Bench Memos reports that 31 Republican senators are on the record with pledges to vote "nay" on the nomination; eight others have said they will vote "yea"; only Ohio's Senator George Voinovich has not indicated which way he will vote.

I said here at APP the other day: "if the Obama team can't get the nay votes below 30 with a nominee who tries as hard as Sonia Sotomayor did to 'channel' Chief Justice John Roberts, then they could be in trouble next time."  In a Senate with 60 Democrats, and efforts afoot to make GOP senators fear a "Hispanic backlash," a dissenting tally of more than 30 senators is a small but important victory for the Republican leadership.  Kudos to minority leader Mitch McConnell, ranking Judiciary member Jeff Sessions, and outspoken Sotomayor critics Jon Kyl, John Cornyn, and Tom Coburn.

As Ed Whelan at NRO's Bench Memos reports, John McCain's announcement that he will vote "no" on the confirmation of Judge Sonia Sotomayor to the Supreme Court brings the total number of Republican senators who have announced likewise to 27.  National Journal's "Ninth Justice" blog says:

Only six out of the Senate's 40 Republicans have said they will vote for Sotomayor. If all the rest vote no and all Democrats vote yes, the final tally would be 64-34 (ailing Democratic Sens. Edward Kennedy of Massachusetts and Robert Byrd of West Virginia aren't expected to vote).

How does this stack up historically?  In the distant past, unrecorded voice votes in the Senate were often used for confirmation of Supreme Court justices.  The last time that happened was when Abe Fortas was confirmed as associate justice in 1965 (ironically, just a few years later, scandal would cause Fortas's nomination for chief justice to be withdrawn).  For data on all presidential nominations and Senate confirmation votes, see this page posted by the Senate's historian.

If we date the modern era of Supreme Court nominations from that of Thurgood Marshall in 1967, a period when all Senate votes have been recorded roll calls, then in the last 42 years three nominations have gone down to defeat (Clement Haynsworth in 1969, G. Harrold Carswell in 1970, and Robert Bork in 1987).  And in the nineteen recorded votes (including these three defeats), the mean vote division has been 76.8 for confirmation and 19.5 against.  If we toss out the five occasions when those voting were unanimous and there were no recorded "nay" votes, then the mean in the fourteen non-unanimous votes has been 68.4 for confirmation and 26.5 against.

So Judge Sotomayor, if she garners only 64 votes for confirmation and 34 senators vote against her, would be well below the average in "yea" votes and markedly above it in "nays."

Will this matter to her as a judge?  Aside from any mild pangs of disappointment she may or may not experience, it shouldn't.  Justice Samuel Alito's confirmation in 2006 was 58-42, and it doesn't seem to have affected him a bit.  Justice Clarence Thomas was confirmed by a record-close 52-48, and he is no shrinking violet as a Supreme Court justice.  For a judge, a confirmation is a confirmation.

But 34 votes against Judge Sotomayor ought to matter to the Obama White House, as a shot across its bow about how future vacancies may be treated by senators in the opposition party.  Replacing the liberal Justice David Souter, after all, was not the highest-stakes struggle, even when it meant a soon-to-be 70-year-old replaced with a 55-year-old.  Replacing the next justice could be much more contentious.  And if the Obama team can't get the nay votes below 30 with a nominee who tries as hard as Sonia Sotomayor did to "channel" Chief Justice John Roberts, then they could be in trouble next time.

Most importantly, a high "nay" tally with few defections from Republican ranks is an important sign that GOP senators are getting their act together.  It means they are recognizing that every Supreme Court nomination--even the ones that don't look highly pivotal, that come from a personally popular president, that play on the power of ethnic politics, and that arrive in a Senate with 60 Democrats--every nomination is a matter of principle, and the votes are just as important as the arguments.  The votes mean that you mean those arguments. 

In her syndicated column, NRO's Kathryn Jean Lopez writes that a "sea change" in the political struggle over same-sex marriage

just may have happened when a pretty, empathetic face came onto the national scene. A young competitor in a beauty contest was asked about her position on gay marriage, and she answered honestly (and, as it turns out, bravely): “I think that I believe that a marriage should be between a man and a woman.” She added: “No offense to anybody out there, but that’s how I was raised.”

That young beauty queen is California's Carrie Prejean, whose place in this debate is explored at greater length in the cover story of the latest National Review by Maggie Gallagher of the National Organization for Marriage.  As Gallagher writes there (the article is currently behind the subscribers' firewall), "Carrie singlehandedly ended the virtual news blackout on gay marriage in Vermont, Maine, and New Hampshire, and trumped the media's attempt to portray public response to developments there as muted."

So writes Canadian columnist David Warren in a sobering column that warns of the suicide of culture when religious faith is lost.  He concludes:

Even when legalizing abortion, we agreed only to the slaughter of human beings we could not see. It was still possible to look away, to pretend we were not killing "real people," only "potential people." But when we embrace so-called "mercy killing," we embrace slaughter not only for the sick and old, but ultimately, the "option" of easy suicide for ourselves. It will be hard to go lower. 

As always, Warren is worth reading and pondering.

Last week during the confirmation hearings on Sonia Sotomayor, I blogged here at APP that her answer to Sen. Tom Coburn on the present state of abortion law was simply wrong.  A commenter wanted more explanation, a wish I have seen expressed elsewhere when I or someone else makes the claim that the Supreme Court has established "abortion on demand" in its decisions.  Today at Public Discourse I have a pretty full explanation of this matter, and raise the question again, why didn't Judge Sotomayor get it right?

is wrapping up her testimony now, noting how far from "settled" the abortion issue is, thanks to the Supreme Court.  Charmaine is president of Americans United for Life, and notes how extreme are the positions Sonia Sotomayor has taken through the years.

From Frank Ricci and Ben Vargas of the New Haven Fire Department, Peter Kirsanow of the U.S. Civil Rights Commission, and Linda Chavez of the Center for Equal Opportunity.  Chavez aptly characterizes Judge Sotomayor as having "drunk deep from the well of identity politics," a well she calls "dark and poisonous."

At the GOP senators' request, Chairman Leahy has permitted a third round of questioning of Judge Sotomayor, each senator limited to just 10 minutes.  Sen. Sessions is leading off now.

Senator Arlen Specter, Democrat of Pennsylvania, concluded his second round of questioning by saying that he has a "strong hunch" that Judge Sotomayor's views on constitutional issues track closely with his own.

Will someone explain once again why, when so many agree on the wrongheaded idea that the Constitution means whatever the judges say it does, we should be satisfied with "hunches" about what they think rather than crystal-clear statements on their part?

Senator John Cornyn, Republican of Texas, asked Judge Sotomayor whether a hypothetical future Supreme Court ruling establishing a right to same-sex "marriage" would be "making" or "interpreting" the law.  (Judge Sotomayor, after all, said yesterday that Roe v. Wade didn't "make" a new right but only applied an old one--liberty under due process--in a new way.)

Smiling, the judge indicated that she saw through Sen. Cornyn's question.  If she said such a ruling would be a "making" of law, she'd be taking a position on its propriety, wouldn't she?  So she wouldn't be able to say, would she, inasmuch as this issue is hotly litigated these days?

Thus does the most innocent question about the functions of the Court and the meaning of the Constitution--on a matter every experienced legal thinker has already thought about--become a forbidden doorway we must not pass through, because of the vaunted "independence" of the courts.  Thus does a principle of the Constitution get so overinflated that it becomes inimical to the Constitution.

Perhaps Judge Sotomayor can be asked if there is any occasion in the Supreme Court's history when it did The Bad Thing and made law.  Then we might ask, quite plainly, what were the hallmarks of that improper judicial behavior--and how those hallmarks might be seen to be present or absent, in the abstract, in Supreme Court decision-making generally.

Yesterday our friend Ed Whelan at NRO's Bench Memos called Judge Sotomayor "Justice Malaprop" for her frequent mangling of the English language as she speaks--"eminent" for "imminent" and so forth.

Twice this morning so far she also has used the word "fulsome" as though it were interchangeable with "full"--as in "fulsome consideration of the issues."  It's a common mistake nowadays, but no less a mistake for all that.

What I called, on Bill Bennett's show this morning, the "miasma of prevarication" created by Judge Sotomayor is becoming positively . . . noisome.  She could look it up.

Senator Jon Kyl, Republican of Arizona, spent his 20 minutes of question time in Round 2 this morning entirely on the Ricci case, pressing the point that Judge Sotomayor's votes in the Second Circuit Court, contrary to her claims, were not bound by any Supreme Court or circuit precedent.  Quoting the Supreme Court's ruling in Ricci, which identified no such precedents, Kyl challenged the judge to name one.

She couldn't.  The best she could do was this convoluted argument: The District Court that decided Ricci wrote a "thoughtful" 78-page opinion supporting its no-trial summary disposition (the Supreme Court didn't think it was so thoughtful); her three-judge panel of the Circuit Court "incorporated" that District Court opinion, thus transforming it into the panel's own view, and hence into a precedent that bound the judges of the circuit; and when the entire circuit was considering whether to grant a rehearing, that "precedent" bound even that decision.

Sen. Kyl was rightly incredulous, noting that it is not normal practice for even the fully considered rulings of three-judge panels to bind a whole circuit considering en banc review--let alone a summary affirmance "incorporating" a summary dismissal by a district court judge.

Judge Sotomayor was doing her best to evade responsibility for her casual trashing of the claims of Frank Ricci and his fellow firefighters who, according to the Supreme Court, were grievously wronged by the city of New Haven.  But it takes some chutzpah to conjure up precedents to bind yourself in this way.  There could hardly be a clearer example of bootstrapping than that.

Another question from Sen. Hatch: How can the Constitution "govern" courts if courts can change the meaning of the Constitution?

Judge Sotomayor: The Court's function is to be the final interpreter.  That, she says, is established by Marbury v. Madison.

Except it ain't so.  See my two articles last week at The Public Discourse.

Judge Sotomayor, responding to Sen. Hatch, just said the "right of privacy" that undergirds abortion rights is not "new" or "made up" and forced "into" the Constitution, but an instance in which the Supreme Court responded to a new "claimed interest" to which a pre-existing right was then said to apply.

That is very interesting.  Care to say more about that, Judge?  All the world understands that Roe v. Wade made up a right to abortion that cannot find a comfortable place anywhere in the Constitution.

Sen. Sessions just quoted Judge Sotomayor's speech in April of this year on the use of foreign law, in which she criticized Justice Scalia and agreed with Justice Ginsburg on that subject, and asked if we couldn't conclude that she . . . disagreed with Scalia and agreed with Ginsburg.

Her answer: "No, sir."  This was followed by disingenuous "explanation" that she never argued that foreign law is binding on U.S. courts (which no one has ever argued, including Justice Ginsburg).

Sen. Sessions wasn't buying it.  Good for him.