In picking Judge Sonia Sotomayor as his nomination to fill Justice Souter’s seat on the Supreme Court, President Obama certainly put himself (and her by extension) in an advantageous position. Sotomayor’s credentials, as stated in the White House press release:
- Sotomayor graduated second in her class from Princeton, and was a Phi Beta Kappa grad
- She was also a graduate of Yale Law School and an editor of Yale Law Journal
- She has five years’ experience as former Assistant District Attorney in Manhattan
- She has corporate litigation experience
- She was the youngest member appointed to the US District Court for the Southern District of New York (appointed by President H.W. Bush)
- She has a decade of experience on U.S. Court of Appeals for the Second Circuit
- She has more federal judicial experience than any Supreme Court justice in 100 years
- She has more overall judicial experience than any Supreme Court justice in the past 70 years
Of course, all of the normal vetting was done (a process covered well in this article) and given her credentials…certain attacks are simply impractical:
INEXPERIENCE/INTELLIGENCE: One can hardly argue inexperience, given Sotomayor’s resume has more breadth and depth than ANY acting Justice had when he or she was nominated. Also, an “intellectual lightweight” may get into Princeton…but is highly unlikely that the person would graduate Summa Cum Laude and later be editor of the Yale Law Journal…that takes serious BRAINS. This, of course, did not stop Karl Rove from questioning Sotomayor’s intelligence, even going so far as to compare her to Harriet Myers…an attack that was ridiculed and dismissed by even the conservative media.
MINORITY PANDERING: This attack only works if the credentials aren’t there, and if substantial diversity already exists on the court. Since Sotomayor’s resume is strong, and the current Court is overwhelmingly dominated by whites and men…this attack would not hold water. PLUS, it would run the risk of alienating women voters and Hispanic voters…two groups which the RNC would very much like to woo.
So…what avenues are still open to the Republicans? They are tending to take one of the following routes:
ACCEPTANCE/NON-CONFRONTATION: A tremendous amount of “backlash” that the media and others expected from the conservative side…never manifested. Top ranking Republicans have gone on record as stating the Sotomayor is highly qualified. Even Senator Jeff Sessions (R – Alabama), top-ranking GOP member on the Judiciary Committee, had the following to say, “Let me just say that this lady has got a good record, as Pat said, for a judge. Prosecutor, lawyer, judge, district trial judge, federal judge – she’s smart, she’s capable…She’s got the kind of background you would look for, almost an ideal mix of private practice, trial prosecution and circuit judge. That’s strong in her favor.” Even the RNC talking points memo that leaked out, didn’t much resemble their usual attack strategy. It recommends fairness and avoiding “knee-jerk” reactions…and even has a number of positive things to say about Sotomayor. On top of it all, many experienced GOP members have publicly admitted that there is NO practical way to defeat her confirmation. Even many of the social conservative groups have opted to sit this one out…perhaps because Sotomayor has not ruled extensively on many “hot-button social issues” and the times she has ruled, her judgments are fairly non-controversial.
ACCUSATION OF BIGOTRY: Some conservatives just can’t help themselves…and it’s not enough to simply wage a pointless battle: they have to take the most childish, most indefensible position possible…and attempt to appeal to the basest, most despicable impulses of some of the American populace. Disgraced former Speaker of the House Newt Gingrich was one of the first…publicly calling Sotomayor a bigot for stating that her heritage and background might give her a unique, and at times, more effective perspective on some issues. Gingrich went on to say, “Imagine a judicial nominee said ‘my experience as a white man makes me better than a Latina woman’…new racism is no better than old racism.” One problem, Newt…that’s essentially what your man, Samuel Alito, said: “…in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point…Because when a case comes before me involving, let’s say, someone who is an immigrant, and we get an awful lot of immigration cases and naturalization cases, I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position…And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.“ Of course, this obvious hypocrisy (and the basic ridiculousness of the accusation itself) didn’t stop Rush Limbaugh, Glenn Beck, and other conservative pundits to repeat the accusation…or for Mitch McConnell, the Republican leader in the Senate, and South Carolina Republican Lindsey Graham to fail to denounce such attacks. Hear that sound, boys? That’s the sound of millions of women and Hispanic voters deciding that the GOP is still too white, too male, and too intent on staying that way.
CRITICISM OF JUDICIAL RECORD: The Republicans’ bread-and-butter attack against Court nominees usually comes in the form of the “activist judge” attack: the insinuation that the judge likes to use cases to “make law” instead of to “apply law.” In this case…Sotomayor’s decisions just don’t provide much ammunition for that particular attack. She usually made decisions well in line with established precedent, and easily supportable interpretations. She did, however, do critics the favor of making a statement to the effect that “the court of appeals is where policy is made.” Of course…she’s right, but the statement does make her sound like an “activist.” To be fair, laws usually require some interpretation to determine where and how exactly they apply, and the courts provide these interpretations which establish precedent, which is essentially the prevailing policy…so it is a very factual statement. And…it helps Sotomayor that this is a statement that uber-conservative Justice Scalia has made in one of his own opinions: “This complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the States’ constitutions as well…In fact, however, the judges of inferior courts often ‘make law,’ since the precedent of the highest court does not cover every situation, and not every case is reviewed.” Another avenue of attack, based on Sotomayor’s record, involves recent criticisms that she has a “60% rate of having her opinions overturned.” This sounds significant…until you consider that in reality, the VAST majority (nearly 99.9%) of her opinions stand unchallenged, and of the tiny number that are reviewed by later courts (a whopping THREE opinions), 60% of THAT small number are overturned. In reality…this is a much smaller percentage than the overall Supreme Court reversal rate…and much lower than the reversal rate of some of the sitting, conservative Justices.
PROCEDURAL: Some conservatives, realizing that there is not much to criticize in Sotomayor’s credentials…and not much to criticize in terms of her judicial record…and not too much a person can say when she was initially appointed by a REPUBLICAN PRESIDENT…these conservatives see filibustering and other “confirmation hearing chicanery” as the only solution. Even though the GOP said that filibustering appointees was “unconstitutional” back in 2005 (they even formed a Coalition to End Judicial Filibusters to make this point)…and even though Jeff Sessions said during the Alito hearings, “You don’t have to read everything he’s written,” (he now says they need to look at Sotomayor’s “over 3,000, maybe 4,000-plus opinions“)…and even though the GOP is earning a reputation of “obstructing for pure obstructionism’s sake“…some Republicans have communicated their commitment to holding up this process as long as possible. Good luck with that…
All indications are that Sotomayor will be confirmed without too much difficulty…so maybe what this writer proposes, is truly the case: right now, the Republicans are the one’s being judged…not Sotomayor. If they realize this, they will be consistent, professional, and fair during the remainder of the confirmation process. If they do not see this as the case, then they will draw a lot of attention to themselves by fighting a battle they cannot conceivably win, at the same time alienating women, Hispanic, and moderate voters with a lot of nonsensical attacks that often come across as little more than thinly-veiled racism and/or sexism.
We’ll soon see what they choose…
I’ll leave you with Stewart and Colbert…perhaps humor can lend some perspective. Here’s the Daily Show:
And here’s the Colbert Report:
See you all tomorrow…