Sotomayor Meets Politics Today
The Senate confirmation hearings for Sonia Sotomayor
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
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
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
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
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
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
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...
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
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
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
Appointed senator Roland Burris has
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
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.
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
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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