The Battle of Sotomayor

The battle lines over the confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court were drawn early and often this morning at the Senate Judiciary Committee hearings. The opening days of such hearings, by acclimation if not custom, are occasions for pleasantries and cordiality; the bloodsport usually starts the second day.

But the contours of the fight to come were obvious before the lunch recess. The Republicans — more in the minority than they were before, now that Al Franken has finally been seated as the 60th Democratic member of the Senate — will fight hard to make this nomination about her, the nominee, rather than about her application of the law.

They’ve already solidly lined up as a bloc prepared to trip her up on her past decisions, various personal statements and matters related to her life narrative, and how it resonates (or fails to) with conservative thinking.

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The Democrats will be just as passionate about defending Sotomayor as a judge and legal scholar, and as an American whose life’s journey is both symbolic of the nation’s ideals, and indicative, in both the giving and the receiving, of the empathy she’s already laid claim to as a central pillar of her judicial philosophy.

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Sens. Jeff Sessions of Alabama and John Cornyn of Texas set the adversarial tone (and perhaps their party’s rhetorical bar) from the start.

Sessions: “I'm afraid our system will only be further corrupted, I have to say, as a result of President Obama's view that in tough cases the critical ingredient for a judge is, quote, ‘the depth and breadth of one's empathy,’ close quote, as well as his words, quote, ‘their broader vision of what America should be.’

“Like the American people, I have watched this process for a number of years, and I fear that this thinking empathy standard is another step down the road to a liberal, activist, results-oriented, relativistic world, where laws lose their fixed meaning …

“I want to be clear. I will not vote for, and no senator should vote for, an individual nominated by any president who is not fully committed to fairness and impartiality toward every person who appears before them.”

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Cornyn was equally blunt: “[T]he Court could demonstrate renewed respect for our original plan of government and return us, slowly but surely, to written Constitution and written laws rather than judge-made laws. The Supreme Court's recent Second Amendment decision in D.C. v. Heller I think is a good example of that.



“Or the Court could alternatively veer off course, once again, and follow its own star. It could continue to depart from the written Constitution. It could further erode the established rights that we have in the text of the Constitution, and it could invent even more brand-new rights not rooted in the text and not agreed to by the American people. …

“To help the American people understand which of these paths you would take us down, we need to know more about your record. We need to know more about the legal reasoning behind some of your opinions on the Second Circuit. And we need to know more about some of your public statements related to your judicial philosophy.”

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For his part, Sen. Sheldon Whitehouse of Rhode Island, one of Congress’ more eloquent and articulate members, brought a rhetorical baseball bat to the hearings, then promptly and deftly went upside the heads of Sotomayor’s naysayers specifically, and Republican past practices in general.

“Your nomination caps what has already been a remarkable legal career and I join many, many Americans who are so proud to see you here today,” Whitehouse said. “It’s a great country, isn't it? And you represent its greatest attributes. Your record leaves no doubt that you have the intellectual ability to serve as justice.” …

“In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough, to a point, but that point comes when these words become slogans, not real critiques of your record.

“Indeed, these calls for restraint and modesty and complaints about activist judges are often code words, seeking a particular kind of judge who will deliver a particular set of political outcomes.” …

“For all the talk of modesty and restraint, the right-wing justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights; the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, the first limitation on Roe vs. Wade that outright disregards the woman's health and safety; the D.C.-Heller decision discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.”

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And in a first and brilliant move as a senator, one that augurs well for his career, Al Franken of Minnesota, the panel's newest member, smartly undercut the GOP’s pending attack on Sotomayor’s “empathy” for everyday people in his own opening statements.

“I take this oath very seriously as we consider your nomination, Judge Sotomayor. …

“Justice Souter, whom you will replace — if you are confirmed — once said, ‘The first lesson, simple as it is, is that whatever court we're in, whatever we're doing, at the end of our task, some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right.’

“I believe Justice Souter had it right.”

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No matter what you think of empathy as a foundation for American jurisprudence, it was there in the judiciary committee room when Sotomayor made some of her initial remarks, in the afternoon.

“I want to make one special note of thanks to my mom. I am here today because of her aspirations and sacrifices for both my brother Juan and me. Mom, I love that we are sharing this together. …

“The progression of my life has been uniquely American. My parents left Puerto Rico during World War II. I grew up in modest circumstances in a Bronx housing project. My father, a factory worker with a third-grade education, passed away when I was 9 years old...”

Eventually, though, the particularities of her personal life returned to her basic approach to the law, one that should hearten conservatives. “In the past month, many senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law — it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms …”

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The risks for President Obama, and even for Sotomayor herself, are fairly small, despite the bluster and empty threat of the outnumbered Republicans. There's no way to demonize this nominee, and the conservatives know it. Sotomayor is no fire-breathing ideologue on the bench. It was clear enough when Lindsey Graham of Florida said flat-out: Unless the nominee had a complete "meltdown," she would be confirmed.

Graham confirmed what couldn't be said in public: Sotomayor was, relatively speaking, a slam dunk. But Graham didn't get or overlooked something else folks didn't talk about: Ironically enough, the ones really under scrutiny this week are the Republicans themselves.



As the hearings play out, the American people will discover just how far the conservatives are willing to go to obstruct the confirmation of a clearly deserving nominee, one who’s undergone scrutiny at this level before. It’s just not good political optics to be seen as mean-spirited toward someone whose personal story is as compelling as Sotomayor’s is.

For Sessions, Cornyn, Sen. Tom Coburn and the other Republicans to come across as microvetting her every word and seeking out her every imperfection would deepen the already solid characterization of the GOP as a dirty national acronym. The American people will be watching to make sure the GOP behaves.

So will the Latino American people. And on the basis of their steadily increasing numbers at the voting booths, paralleling their increasing percentage presence of the American population — an estimated 45.5 million Americans self-identify as Latino — Hispanic Americans know that Republicans can hardly afford to antagonize a voting bloc whose clout and heritage made themselves felt in November, and won’t ever be ignored again.

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For Latino voters, the GOP’s got some ‘splainin to do already.

Roberto Lovato, blogging at firedoglake, fully grasps what’s at stake not for Sonia Sotomayor, but for her inquisitors. One in particular:

“[M]illions of Latinos will watch what for them is a historical event of the utmost political and intimate importance. Many of these Latinos will be watching to see any signs of the racism and xenophobia many Latinos blame the GOP for and voted overwhelmingly against in the last election. Latino voters will, for example, be vigilant about what GOP Senate Judiciary members like Jeff Sessions say before and during the hearings.

“Earlier this month, reports linking Sessions, the ranking Republican on the committee, to anti-immigrant hate groups, filled Spanish-language media. According to the Washington-based America’s Voice, the Alabama senator has appeared at several events organized by the Center for Immigration Studies (CIS), NumbersUSA, the Federation for American Immigration Reform and other groups designated by the Southern Poverty Law Center and other organizations as ‘hate groups.’

“Anything in this must-see Latino political event resembling the anti-immigrant rhetoric that has been Sessions’ trademark will cost his party for years to come.”
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Image credits: Sotomayor, Frankel, Sessions: From pool feed.