With three days of hearings under our belts, we can strongly suspect that several Republicans on the Senate Judiciary Committee will not vote to confirm Judge Sonia Sotomayor to the Supreme Court. We can also strongly suspect that all 60 Senate Democrats will vote to confirm; the opaqueness of her answers on abortion and gun control probably provided sufficient cover for the relatively conservative Democratic senators Ben Nelson of Nebraska and Mark Pryor of Arkansas.
So if there are any “swing votes” remaining in the Senate, they are among the 33 Republicans who aren’t on the judiciary panel. There are probably some GOP lawmakers who would prefer to earn bipartisan brownie points by voting for the first Latina nominee to the court: to win mainstream media praise for their broad-mindedness, and to avoid having to explain a “no” vote to Hispanic activist groups. Some senators may want to hold true to the idea that Supreme Court nominees should be judged on their qualifications, but that concept seems destined to become the mark of a bygone era.
But if you were a Republican senator, and wanted to vote in good faith to confirm Sotomayor, you would have to believe:
· That her “wise Latina” argument was just a bad “rhetorical flourish” that accidently left listeners believing she disagreed with Justice Sandra Day O’Connor, when she actually agreed with her.
· That the misperception of the “wise Latina” argument remained uncorrected through six separate uses of it.
· That Sotomayor genuinely has “no idea” why George Pavia, a senior partner in the law firm that hired her as a corporate litigator, would say, “I can guarantee she’ll be for abortion rights.”
· That she did not read the legal briefs filed by the Puerto Rican Legal Defense and Education Fund while she was on that organization’s board.
· That she genuinely does not have an opinion on whether citizens have a right to self-defense, and could not think of “a case where the Supreme Court has addressed that particular question,” despite the fact that the Heller case decided last year declared, “The inherent right of self-defense has been central to the Second Amendment right.”
· That she “actually agrees” with Justices Scalia and Thomas that judges have to be “very cautious” about using foreign law, despite a speech earlier this year in which she said, “Suggest[ing] to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding.”
· That she really believes that “we don’t make policy choices in the court,” even though she said in a 2005 appearance at Duke University that the “Court of Appeals is where policy is made.”
· That she genuinely believes that “the process of judging is a process of keeping an open mind,” when she said in a 1999 speech that there is “no objective stance but only a series of perspectives. . . . Aspiration to impartiality is just that, an aspiration.”
· That she thinks the man who nominated her has a fundamentally flawed perspective on the role of judges, and that she will not “approach the issue of judging in the way the president does.”
That’s a lot to swallow. Essentially, the poised and affable judge who appeared before the cameras this week came across as almost completely unobjectionable — almost a photo negative of the judge portrayed in Sotomayor’s past speeches. “We’re left guessing as to what kind of judge she would be,” Sen. John Cornyn (R., Texas) said during a committee break. “We don’t know if we’re going to get Sonia Sotomayor the speech-giver or Sonia Sotomayor the judge. Once she’s on the Supreme Court, she can say anything she wants with no chance of reversal. The lack of clarity is creating some problems.”
Few Sotomayor opponents expected her nomination would be rejected; on the first day, Sen. Lindsey Graham (R., S.C.) said she would be confirmed barring a major meltdown. Not only was there no meltdown through the first three days, the reactor’s core temperatures never got outside of the safe zone. To persuade Democrats to vote against the first Latino justice and turn against a new president, it would take more than Sotomayor’s lower-than-usual polling numbers (Rasmussen found that 37 percent said she should be confirmed, while 43 percent said no, while the Diageo/Hotline survey found 31 percent of respondents said they approve of her, and 24 percent disapprove). It would have required the nominee to explode like the large and loud protester who interrupted Sen. Charles Grassley on Tuesday.
The nomination will not be filibustered. Cornyn noted: “We don’t have the numbers to effect a filibuster, even if we were so inclined.”
Without help from an unprepared nominee, Senate Republicans never had any real shot of derailing the nomination. What they can do is articulate the case against her, and make a strong case to the senators who are persuadable. After all, opponents of John Roberts persuaded 23 senators to vote no, and he had no speeches or comments remotely as controversial as Sotomayor’s. The choice before the Republican senators is clear: Sign off on the list of implausible statements above, or vote “no.”
— Jim Geraghty writes the Campaign Spot for NRO.