The members of the Obama Administration are the most politically cunning group to inhabit 1600 Pennsylvania Avenue since the Reagan years. Unlike the feckless Jimmy Carter or the erratic Bill Clinton, the current president and his team know how to make liberalism go down smooth. And that’s the political genius of the president’s pick of Judge Sonia Sotomayor as Justice David Souter’s replacement on the U.S. Supreme Court.
Obama knows that the Republican Party is currently suffering through an identity crisis that has left it both insecure and irresolute. By choosing a nominee that is both Hispanic and female, he has dared the GOP to pick a fight that could damage the party’s standing with two demographic groups it’s struggling to cultivate.
So far the strategy is working. Bedrock conservatives like Rush Limbaugh and Newt Gingrich have attacked Sotomayor as a racist because of her oft-cited contention that her standing as a “wise Latina” makes her a better judge than a white man. Meanwhile, more timid Republicans are clearing their throats, insisting that the “racist” label is divisive, and assuring the press that they have legitimate objections that they’ll make known at a later date.
This is a sad spectacle to behold – and by now the GOP should know better. Like the White House’s earlier demonization of Limbaugh, this is a trap set to ensure that Republicans spend more time repudiating each other than the opposition. And the party of Lincoln has taken the bait.
Before the circular firing squad starts arming, Republicans in Congress need to get their act together and start thinking clearly. Here’s a start: Sotomayor declared that she was a superior jurist based on he ethnicity and the pairing of her chromosomes. If that isn’t racism, the word has no meaning. Observant readers may note that it’s sexism as well.
With a near veto-proof Democratic majority in the Senate and a public still willing to extend Obama the benefit of the doubt, however, the protestations of Limbaugh and Gingrich are not going to be enough to sink the Sotomayor nomination. Only one person is equal to that task: Judge Sotomayor herself.
If Republican senators mug for the cameras and lay on the rhetorical bombast, they’ll make Sotomayor sympathetic and themselves imbecilic in the public’s eyes. No one wants to see white-haired legislators from the old confederacy attempt to lecture a Puerto Rican from the Bronx on race relations. We’re still less than half a decade removed from Arlen Specter attempting to tutor John Roberts about “super duper precedents” and Ted Kennedy sending Samuel Alito’s wife running off in tears. That lack of seriousness need not return.
Republicans need to engage Sotomayor in an honest and intellectually sophisticated discussion on how identity politics shape the judiciary. Their questions should be sober but pointed.
Sotomayor should be asked if her contention that different demographic backgrounds produce qualitatively different jurists undermines the notion that judges can reason together. She should be asked to define her understanding of the 14th Amendment’s promise of equal protection of the laws. And she should be asked to defend her summary order in Ricci v. DeStefano, the now infamous case where Sotomayor sided with the city of New Haven, Connecticut, in its refusal to promote white and Hispanic firefighters because none of their black counterparts scored as well on a qualifying exam. That question may be all the more pertinent if the court Sotomayor is seeking to join has already overturned her ruling by the time the confirmation hearings are underway.
If Sotomayor can answer thoroughly in a fashion that satisfies both the Senate and the American people, she deserves confirmation. If not, she should be undone by her own words, not by senators poisoning the rhetorical well. But her confirmation should not be inevitable – and on that point the public seems to agree. On the week of her nomination, a Rasmussen Reports poll showed support for Sotomayor’s confirmation at a margin of 45%-29%. By last week, those numbers had already fallen to 41%-36%.
The Republican strategy for this confirmation should be to pursue a fair-spirited but tough-minded interrogation, not a fevered inquisition. By doing so, they can ensure one of three outcomes, each healthy for both the party and the nation.
If Sotomayor proves herself unready for the nation’s highest court, the Republican leadership should support her 2nd Circuit Court of Appeals colleague Jose Cabranes as her replacement. This would honor Obama’s wish to appoint the first Hispanic justice to the court, but it would also make a meaningful distinction. It was Cabranes who led the revolt over Sotomayor’s facile response to the Ricci case. Promoting him in her stead would show that the GOP is not hostile to a Hispanic justice – it simply wants one who will honor America’s ideal of color-blind law.
If Sotomayor makes it through the confirmation process but proves to be a legislative liberal garbed in the robes of the judiciary, it will give ammunition to the Republicans for Obama’s next Supreme Court appointment. If Obama proves to be a two-term president, recent trends indicate that he’ll probably get one or two more appointments to the nation’s highest bench. With three sets of congressional elections looming in that timeframe, Republicans are likely to be operating from a position of greater strength in the future. And if they can make the case that Sotomayor proved to be a stealth activist, it will only strengthen their hand for confirmation fights to come.
Finally, if Sotomayor is confirmed and proves to be reliable but sensible member of the court’s liberal bloc, then that’s life in politics. Republicans are entitled to a principled opposition, but they’re not entitled to have every nominee be an Antonin Scalia clone. For that, they’ll have to make a case at the ballot box. Elections, after all, have consequences.June 9, 2009
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