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Sotomayor Pick Puts Republicans in a Bind     Permalink

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 complimented 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 nomination.

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 immense pride. 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 allow 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 the court.

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 attention.

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