Politics & Policy

A Goal Worth Pursuing

Republicans probably can't defeat Sotomayor, but they can score some points.

Republicans head into the confirmation hearings for Supreme Court nominee Sonia Sotomayor in the strangely reassuring position of having little to lose. Because she would replace another left-leaning justice, Sotomayor is not expected to significantly change the ideological makeup of the court. With 60 Democrats in the Senate, and no member of the majority party giving any indication of opposing her, she’s all but guaranteed confirmation, barring a total meltdown in the hearing process or the revelation of some grade-A scandal.

But just because the nomination can’t be defeated doesn’t mean there aren’t alternative goals worth pursuing.

Leonard Leo, executive vice president of the Federalist Society for Law & Public Policy Studies, thinks that tough, revealing questioning at the hearings can help heighten the public’s awareness of the kind of judges that President Obama prefers, persuading Americans that Obama nominees’ judgments will be well beyond the mainstream despite their bland, noncontroversial rhetoric. (Leo, who worked on the Roberts and Alito confirmation process, emphasizes that he is speaking on his own behalf, not on behalf of the Federalist Society.)

And the confirmation vote’s final count does matter, at least as far as perception goes. “Twenty-three is the magic number,” Leo said. “That’s how many ‘no’ votes John Roberts got. If Sotomayor gets fewer ‘no’ votes than John Roberts, they’ll be touting that as a victory, and there’s a lot to be said for the argument that she ought to get a lot more ‘no’ votes than that.”

Based on senators’ histories and general areas of expertise, Leo expects Sen. Jeff Sessions (R., Ala.) to ask the judge about her judicial philosophy — particularly focusing on the “wise Latina” comments in various speeches, some critical race theory, and her contention that judges should base their decisions at least partially on their personal backgrounds and experiences. The topic of judicial philosophy is also likely to be the focus of questioning from Sens. Orrin Hatch of Utah and Lindsey Graham of South Carolina.

The Second Amendment, and perhaps Sotomayor’s sense of the role of international law, is likely to be a focus of questions from Sens. John Cornyn (R., Texas) and Jon Kyl (R., Ariz.). The senators might try to get her to commit to recuse herself from the gun-rights case she decided as an appeals-court judge should that case make it to the Supreme Court.

Sen. Tom Coburn (R., Okla.) will probably be the committee’s point man on abortion-related cases, likely to ask what role the judge played when she served on the board of the Puerto Rican Legal Defense and Education Fund, which filed at least six briefs in abortion-related cases before the Supreme Court.

Another topic that will get a significant amount of attention is the recent Ricci v. DeStefano case, involving a test for New Haven firefighters — in which Sotomayor’s position was reversed by a 5-4 Supreme Court majority. Two of the plaintiffs — Frank Ricci and Ben Vargas – will testify before the Senate Judiciary Committee, and there is some talk that all of the plaintiff firefighters will attend the hearings.

“The issue of quotas is a good one for conservatives, but in addition to the quota issue, there is also the way she treated the firefighters,” Leo said. “She was so dismissive and perfunctory in the treatment of their claims that her dismissive nature may be an issue.”

Leo believes that Sotomayor will be too polished to be tripped up by open-ended questions. He explains that in preparation for the hearings, Obama’s advisers have spent enormous amounts of time ensuring that Sotomayor will be “on message” for any potentially controversial or touchy topic. “The more latitude you give her, the more likely she is to go back to the message she’s practiced. She’ll just filibuster. You have to force her into giving answers with a series of questions that leads her in a direction that she doesn’t want to go.”

He notes that a major issue will be time. There are twelve Democrats on the Judiciary Committee and only seven Republicans. “The Democrats are going have more time than they know what to do with. They’re going to try to get people to turn this off, because from their perspective, there’s no point in making this a show people want to watch. . . . Republicans are going to need to be very strategic and careful in how they handle their questions.”

Leo suggests that if Sotomayor’s legal approaches to the Second Amendment and abortion become a flashpoint, conservative Democratic senators Ben Nelson of Nebraska and Mark Pryor of Arkansas “may have to think a little bit” about their vote.

“It might be nice to have a Democrat or two, but the real aim here is to raise the decision cost for a future appointment of another justice with a similar approach,” Leo said. “You want to force the administration to spend capital and think twice on what they do in the future.

Jim Geraghty writes the Campaign Spot for NRO.

EDITOR’S NOTE: This piece has been amended since its initial posting.

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