Sotomayor Meets Politics Today     Permalink

The Senate confirmation hearings for Sonia Sotomayor begin today. Ostensibly they are about whether she is qualified to sit on the Supreme Court. But in reality, they will have little to do with that. The hearings will be entirely about politics. In turn, each of the 17 men and two women on the Senate judiciary committee will give a speech about something dear to his or her heart and then ask Sotomayor to comment. Sotomayor will then make a vague statement that says nothing. If the senator actually asks a real question (like "Do you support Roe v. Wade?") Sotomayor will decline from answering the question at all, saying that it might come before the court in the future. The senator will grunt and the process will be repeated. At the end of the week, all 12 Democrats on the committee will vote to confirm her and so will some of the seven Republicans. Then the full Senate will later vote to confirm her and each party will release a storm of press releases. Is this the best way for the Senate to fulfill its constitutional role of "advise and consent"? Probably not, but politics overrides everything. As an aside, one could certainly imagine a different system, where, for example, the leader of the President's party in the Senate "advises" the President by presenting him with a nonnegotiable list of candidates to choose from. After choosing one, confirmation hearings would begin. This would give the Senate a real role, but that's not how the game is played today.

Where does politics enter into all this? The Democrats now have 60 votes in the Senate and any Democrat who opposes his President's choice here will have hell to pay later, so Sotomayor's confirmation is assured. All that is left is political street theater. What the Democrats are hoping for, and will do their best to achieve, is for the Republicans on the committee to attack Sotomayor mercilessly. The result of such attacks will be to offend Latinos (and to a lesser extent, women) and thus make Colorado, New Mexico, and Nevada (currently 19 electoral votes) Democratic for the next 10 years. The nature of the attacks doesn't matter. A large majority of Latinos consider Sotomayor qualified and will see an attack on her as an attack on Latinos in general. The Democrats will do everything they can to goad the Republicans on.

But the Republicans aren't stupid. They understand this issue full well. However, they have a different agenda. They want to energize their base by emphasizing conservative principles, in particular, the rule of law. By attacking Sotomayor on her presumed willingness to substitute her own judgment for the rule of law, they score points with conservatives everywhere, independent of their political affiliation, but most are Republicans or Republican-leaning independents, of course.

The flash point is likely to be one sentence from a speech Sotomayor gave at a symposium on Latinas in the judiciary held at the University of California at Berkeley law school in 2001 in which she said: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Sotomayor is 55 years old, but conservatives feel that one sentence summarizes her entire life.

Now aside from the issue of whether any nominee for anything should be judged entirely by one sentence from a speech given a decade ago, people who focus on this one sentence seem to have the idea that a Supreme Court justice is a kind of robot: you feed the constitution in one end and a decision comes out the other end, completely automatically. The fact that historically few decisions have been unanimous suggests little is automatic about the procedure. Clearly each justice brings his or her life experience to bear on the decision. Not only is the obvious, it is unavoidable.

Consider, for example, the recent case of Savana Redding, a 13-year-old girl and honor student who was strip searched by her school nurse because a classmate said Redding had prescription-strength ibuprofen on her body. Prescription-strength ibuprofen is simply a pill with the same amount of active ingredient as two over-the-counter ibuprofen pills, which Redding could have legally brought to school. But the school has a policy of no prescription drugs in school without notifying the school nurse and said it was just enforcing its zero-tolerance-for-drugs policy. Redding was humiliated and her mother sued the school. Redding won the case and the school appealed to the Supreme Court.

Now here's the problem with the "robot theory" of Supreme Court justices. Suppose a justice is 100% committed to following the constitution so when the case hits, he or she Googles "United States constitution" and discovers the fourth amendment, which says:

Great. So if this search was unreasonable, it was also unconstitutional but if it was reasonable, it was fine. Trouble is, the constitution doesn't spell out what is reasonable. The justices had to make a judgment call here based on their life experiences. If the nurse hadn't insisted on peeking inside her bra and panties, would that have been reasonable? Suppose the nurse had done a pat-down search, the way TSA employees pat down thousands of passengers at airport security checkpoints every day? Suppose the nurse had merely asked Redding to empty her purse and pockets but leave her clothes on? What if the suspected drug had been marijuana instead of ibuprofen? Suppose three students had incriminated Redding instead of just one? Would it have been any different if it had been a boy rather than a girl? What if she were a 7-year-old or a 17-year-old instead of a 13-year-old? The constitution doesn't say a damn thing. So each justice has to make up his or her own mind. That's why the argument that a justice has to put aside his or her own feelings and just follow the law doesn't fly: in these tough cases, the law doesn't say what to do. In this case, the court decided 8-1 (with justice Clarence Thomas dissenting) that the search was illegal, but who knows what it would have decided in any of the variant scenarios sketched above.

Clearly anyone smart enough to get elected to the United States Senate understands simply parroting that justices must follow the law is not a very useful guide to confirming nominees, especially when every nominee will swear on a cart of Bibles that he or she will simply follow the law. But many voters are not so smart and go for the grandstanding, which is why it will happen.

An interesting question is how the judiciary committee will vote. It is a given that all 12 Democrats will vote to confirm. The Republicans are harder to guess. Of course, something unexpected could happen. Sotomayor could slip up and say something dumb thus giving a senator an opening to vote no. But with all the usual caveats about making predictions (especially about the future) here is a wild guess at what might happen:

• Tom Coburn (R-OK): No. Coburn is against everything and there aren't a lot of Latinos in Oklahoma, so what the hell.
• John Cornyn (R-TX): Yes. Cornyn is chairman of the NRSC. He understands very well that Republican opposition to Sotomayor is not going to help much in electing Republican senators in 2010, even though most of the battleground states do not have large Latino populations. Still, while he may not care much for Sotomayor personally, he'll probably do what's best for the party.
• Lindsey Graham (R-SC): Yes. Graham served in the Air Force in the Judge Advocate General Corps and is a stickler about rules and laws. He'll pay a lot of attention to what she says about the rule of law, but if she is gung-ho in favor of it, he'll probably support her.
• Charles Grassley (R-IA): Yes. He takes the process very seriously and if there are no slipups, will grudgingly grant that a President can appoint someone whose philosophy he agrees with.
• Orrin Hatch (R-UT): Yes. (He's safe in Utah and tries to act nonpolitical sometimes) He generally doesn't showboat.
• Jon Kyl (R-AZ): Probably yes. Despite a lot of bluster, Kyl is aware that Arizona is full of Latinos who won't forgive a no vote. He'll need their votes in 2012, when Obama will be on the ticket and McCain won't be there to shield him.
• Jeff Sessions (R-AL): Probably no. The judiciary committee rejected him in 1986 when President Reagan appointed him to the federal bench. That hurt. The committee felt he was too racist to be a judge. He's also from Alabama, which is not a Latino-friendly state. On the other hand, he is the ranking member and wants to make the Republicans look responsible. Hard to call, but he is very conservative so probably no.

Burris Will Not Run in 2010     Permalink

Appointed senator Roland Burris has announced that he will retire next year and will not seek reelection. This decision does not surprise anyone since (1) he has been unable to raise any money and (2) had no chance at getting the nomination even if he were able to raise money. So far the main Democratic contenders for the nomination are state Treasurer Alexi Giannoulias and Bobby Kennedy's son, Chris Kennedy. Illinois Attorney General Lisa Madigan, who would be the odds-on favorite, has said she will seek reelection as AG. On the Republican side, Rep. Mark Kirk has been putting his toe in the water, then removing it, then reinserting it all week. If Illinois GOP chairman Andy McKenna does not run, Kirk probably will, but McKenna hasn't been clear about his intentions yet. McKenna is far more conservative than Kirk and a primary between the two of them would be very nasty indeed. The GOP's best hope is to talk McKenna out of running and then go with Kirk.

Cuomo Criticizes Paterson     Permalink

New York Attorney General Andrew Cuomo (D) is widely believed to be considering running for governor of New York, a job his father once held. Polls show that Cuomo would win in a landslide, easily defeating every primary and general election opponent. So far, Cuomo has been rather coy about his gubernatorial intentions. However, he recently got involved in the mess in the state Senate, which some observers see as a prelude to his challenging Gov. David Paterson (D-NY) in a primary.

The story is immensely complicated but very briefly, the Democrats held a 32-30 margin in the state Senate until a couple of Democrats jumped ship and then one jumped back leaving the body tied at 31-31. To break the tie, Gov. Paterson appointed a lieutenant governor, a slot that became vacant when Paterson succeeded former governor Eliot Spitzer when the latter resigned after a being caught in a prostitution scandal. Cuomo said that this appointment was unconstitutional because the New York state constitution does not provide any mechanism for filling a vacant lieutentant governor's position. By coming out and attacking the governor so directly, Cuomo may be sending a signal that he is not all that impressed by Paterson and might challenge him. The thing he is worried about is being called a racist because in 2002 he ran for the Democratic gubernatorial nomination against a black man, Carl McCall, and in 2010 he'd be running against another black man. Some people would use these two data points to conclude he doesn't like black men, although a better explanation is that New York has a decent supply of high-ranking black politicians (which include Paterson's father, Basil Paterson, a former NY Secretary of State and Deputy Mayor of NYC).

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