Sotomayor Pick Puts Republicans in a Bind
President Obama's choice of second circuit appellate judge
Sonia Sotomayor for the Supreme Court puts Senate Republicans in a
bit of a pickle.
On the one hand, she is of a moderate-to-liberal bent, having grown
up in poverty in public housing in the Bronx and later graduating
from Princeton (on a scholarship) and then Yale law school.
So Republicans will instinctively oppose her, but of course they
know if they manage to kill her nomination, Obama will nominate another
moderate-to-liberal candidate, maybe even further to the left.
When Sotomayor was nominated the appellate court in 1998,
seven current Republican senators
voted for her confirmation.
These were senators Bennett, Cochran, Collins, Hatch, Judd, Lugar, and
Snowe. It will be awkward, to say the least, for them to vote against her now
unless they can find some decision she made as an appellate judge
that they claim was completely inappropriate.
Snowe has already
Obama on his choice of a woman. Her vote is thus already in the bag.
This will give Collins the cover to vote for confirmation as well.
So barring something unexpected,
the Republicans have no realistic hope of actually scuttling Sotomayor's
On the other hand, the Latino community is likely to perceive
the rise of a Puerto Rican from the Bronx to the Supreme Court with
If the Republicans even try to filibuster her, come
the 2010 elections, if they try to expand their share of the Latino
vote, this filibuster will come back to haunt them. It is bad enough
that a young, telegenic, and very conservative Latino, Marco Rubio,
is running for the Senate in Florida--with practically the entire
Republican party supporting his primary opponent, Gov. Charlie Crist (R-FL).
It will be a tough sell for the GOP to tell Latinos in 2010 (and 2012),
"We love you, we just didn't happen to like the only Latino ever
nominated to the Supreme Court or a very conservative Cuban-American
running for the Senate. But when the right Latino comes along at
the right moment, boy will we ever support him or her. Trust us."
During the confirmation hearings, Republicans on the judiciary
committee will ask Sotomayor if she is a judicial activist and she will
say absolutely not, she is just there to interpret the constitution
and the output of all the wise people who serve in Congress and pass
laws. But in reality, a lot of what the Supreme Court has to actually
decide has little basis one way or another in the constitution.
For example, does the fourth amendment's prohibition on unreasonable
searches allow or prohibit a school to strip search a 13-year-old
girl on the basis of a rumor that she may have prescription drugs
hidden in her bra? The constitution does not say what is a reasonable
search or an unreasonable search, but when this specific case came up, they had
to fill in the blanks.
There is a fair chance the Republican strategy will be comb over
Sotomayor's life and decisions very carefully looking for dirt and if any
is found, use that as the reason for opposing her. But in the absence
of dirt, and knowing that they don't have the votes to sustain a
filibuster, they probably won't try. The political downside for 2010
and 2012 is too great.
A side effect of the Sotomayor nomination is that it may
Obama to delay dealing with immigration reform for a while since Latino
voters will be feeling good about him for a while just due to this
nomination. On the other hand, if Obama (or more realistically, Rahm
Emanuel) wants to enjoy the spectacle of the GOP tearing itself to bits,
reintroducing the McCain-Kennedy immigration bill would be a good first
start. The Tancredo wing the the Republican party will go all out to
block it because it provides a path to citizenship for over 10 million
illegals currently in the U.S. But an all out fight against these
people--many of whom have friends and relatives who are citizens
(and voters) will further alienate Latinos from the Republican Party.
In contrast, the only major Democratic constituency that might oppose
the bill is the labor movement, but there are probably other ways to
mollify them (e.g., an all out push for card check).
Supreme Court justices have a funny way of marching to their own
drummers once given a lifetime appointment. President Eisenhower was
once asked what the biggest mistake of his 8 years in office was and he
said it was appointing former California governor Earl Warren to the
Supreme Court. Certainly President George H, W. Bush did not expect
David Souter, a quiet intellectual to become a solid liberal vote on
So one can ask what the chance is that Sotomayor suddenly becomes
Antonin Scalia's new best friend. Time will tell, but her past
judicial decisions aside, Sotomayor grew up poor and knows poverty
well. She also has diabetes and may be sympathetic to people suing
health insurance companies, for example.
To suddenly turn her back on her whole life would be surprising.
A counterexample is Clarence Thomas, but he is a bit of a special case.
Thomas may have discovered early on that by being a black conservative
he was a rare commodity highly valued by conservatives in general and
the Republican Party in particular and he exploited this to gain
high rank, whatever his true personal beliefs. There is little to
suggest that Sotomayor has acted like a liberal for years in order to
curry favor with Democrats. Besides, it wouldn't work. The pool of
liberal Latinas is much to large for yet another one to attract any
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