As the Senate Supreme Court hearings for President Barack Obama’s nominee Sonia Sotomayor head into their third day, one thing has become abundantly clear: both parties are now playing to the future — reflecting and trying to consolidate their present constituencies while giving hints of their political warmaps for the future Supreme Court battles to come.
On the Democratic side, it’s clear the Democrats are hammering home the idea that the present Supreme Court has some members who are conservative judicial activists — a political jiu jitsu move, using an argument Republicans used on Democrats particularly before the GOP took over all branches of government under George W. Bush. The Democrats, who’ve traditionally had strong Latino voter support, are using the occasion to celebrate Sotomayor’s story, her accomplishments, the symbolism of what it will mean for a Latina to be on the nation’s highest court, and how she will differ from Democrats’ description of Republican appointed judges.
On the Republican side, Republicans continue to hammer home the idea that “empathy” could really mean bias and ignoring the law and that it’s a dangerous trait for a judge, zero in on some of Sotomayor’s more controversial cases, repeatedly lambaste her for her “wise Latina” comments, and play to the party’s talk radio political culture base in a calculated risk that the GOP won’t be virtually kissing off support from increasingly powerful Latino voters for years to come.
The stakes are high: if Obama serves more than one term he could get to appoint several judges — thus changing the direction of a court that has drifted largely rightward and appointing younger judges who will be there for a while. That would likely consolidate abortion rights in the United States, while other rulings would have major ripple effects down the line in the judiciary — and throughout the country. This is the Democrats’ dream and the GOP’s nightmare. The Democrats have a window of opportunity; the Republicans want to make sure Democrats can’t jump through it.
How will it these present hearings play out?
So far Sotomayor has done quite well, according to CNN:
Sonia Sotomayor faced tough questioning Tuesday on political issues and controversial statements from her past, with both Democrats and Republicans saying she responded well and appeared certain to win confirmation as the nation’s first Hispanic Supreme Court justice.
The 55-year-old federal appeals judge conceded she made a bad play on words in saying in 2001 that a “wise Latina woman” could reach a better conclusion than a white man.
Otherwise, her calm answers to questions by the Senate Judiciary Committee on a wide range of issues — abortion, gun control, presidential powers, the death penalty — displayed a command of legal concepts that impressed her harshest interrogators.
“She’s doing okay,” Republican Sen. Lindsey Graham of South Carolina said during an afternoon break. Sotomayor was “very reasoned and measured and seems to have a good understanding of the law,” he said.
Democrats on the committee praised her performance, with Chairman Patrick Leahy of Vermont saying he expected her to win approval with support from members of both parties. In particular, they praised her temperament — which Graham had questioned due to criticism by some lawyers that she was bullying on the appellate bench. Video Watch Sotomayor talk about the comment »
“I don’t think she showed the least difficulty with her temperament or with her capacity to remember and answer complex questions,” said Sen. Sheldon Whitehouse, D-Rhode Island. “I thought it was a bravura performance, both in her intellect and her temperament [which] showed somebody who I could very readily see sitting behind that high bench on the Supreme Court.”
USA Today also gave her high marks:
In testimony before the Senate Judiciary Committee Tuesday, Supreme Court nominee Sonia Sotomayor quipped that she had been a “pretty good litigator” in her day and adept at persuasion. She could have been talking about her second day at the witness table.
She reframed questions to her advantage. She elaborated in ways that made her sound moderate and deftly navigated the nooks and crannies of the law. She refused to be pushed further than she wanted to go, by either Democrats or Republicans.
“I like you,” said Sen. Lindsey Graham, R-S.C. “I may vote for you.” On a recess, Sen. John Cornyn, R-Texas, one of her harshest critics, called her “very charming.”
The LA Times offers this article giving experts reaction to the testimony — and again it noted how well she did. Here’s how it begins:
Supreme Court nominee Sonia Sotomayor parried tough questions Tuesday from the Senate Judiciary Committee about how race and gender affect a judge’s views on the law. Republicans focused on a single ruling from her 17 years on the federal bench involving a group of white firefighters claiming reverse discrimination. Legal experts said the exhaustive discussion of the New Haven, Conn., firefighters’ case and Sotomayor’s comment about a “wise Latina” making better judgments than a white male spotlighted the dearth of evidence opponents have against her.
The Christian Science Monitor:
Supreme Court nominee Sonia Sotomayor offered the first public defense on Tuesday of her decision to dismiss a reverse-discrimination case involving white firefighters in New Haven, Conn. She told members of the Senate Judiciary Committee that the appeals court judges’ hands were tied by existing law.
“The issue was not what we would do or not do,” she said. “When you are on a circuit [appeals] court, you are obligated to follow a circuit’s precedent.”
Ms. Sotomayor was one of three appeals court judges who agreed with a trial judge that the white firefighters’ case should be thrown out of court. That decision was overturned by the nation’s highest court in a 5-to-4 opinion issued two weeks ago.
The case was controversial because it involved the hot-button issue of the use of race as a criterion in government employment decisions. It was also controversial because the Sotomayor appeals court panel initially dismissed the case by issuing an unsigned one-paragraph summary order. Such action is usually reserved for routine, unimportant decisions.
Sotomayor said there was no need for the appeals court panel to prepare its own detailed analysis of the New Haven case. She said the panel relied on the “very thorough” 78-page decision of the federal judge in New Haven.
Some analysts have suggested the firefighter case might occupy center stage at Sotomayor’s confirmation hearings, given the hearings’ proximity to the high court decision.
But Sotomayor firmly defended her actions in the case Tuesday. Senators did not seem eager to spar with her over the legal twists and turns of the complicated and racially charged litigation.
However, politics is in the perception of the beholder — and no where was this more evident in how some pundits and activists viewed one highlight of yesterday’s testimony.
On one conservative talk show callers praised Lindsey Graham’s questioning of Sotomayor. But Congressional Quarterly’s Craig Crawford thinks it was a huge political mistake:
Watching Lindsey Graham’s gotcha grin as he needled Supreme Court nominee Sonia Sotomayor with disingenuous and rhetorical questions you had to wonder what was so funny.
Does the Republican senator think it is amusing that he and his party’s condescending tone toward the Hispanic woman was costing them ethnic votes with each passing hour of Tuesday’s Judiciary Committee hearing?
It is not that the Republican inquiries were out of bounds in legal terms. A confirmation hearing like this is a political forum.
Even if they vote for her, the fallout for Republicans could reach well beyond Hispanic voters. They are coming across as a bunch of snarky and bitter old white men who cannot bear the thought of their kind losing power.
Here’s some of the questioning so you can decide for yourself. First, this video from the liberal site Talking Points Memo:
MSNBC’s video:
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GO HERE to read excerpts from Sotomayor’s testimony. A full transcript can be found by reading THIS and then THIS.
The bottom line: GOPers have acknowledged that they don’t expect to derail her nomination. So what is happening? The Republicans are — as usual — playing to the party’s political base (which the party already has and does not seem to offer great room for growth). Democrats are playing to their base (which includes Latinos, one of the country’s fastest growing and potentially potent demographics).
Crawford is likely correct: the tone of the Republican questioning — and perceptions of it — will likely turn off some voters that the Republicans will need and only shore up a base that is already…shored up.
Here’s an extensive cross section of opinions from a wide variety of weblogs on the Sotomayor hearings:
—Marc Ambinder:
In theory, these hearings are supposed to help us figure these out. Instead, they’re designed to squish everyone into some supposed middle ground where judicial theories and environmental predispositions never matter (except when they do.) That leads to absurdity all around: Senator John Kyl being unaware that white guys bring their perspective to situations, or Patrick Leahy patiently coaching Sotomayor through her days a facts only, mam, prosecutor. Sotomayor won’t tell anyone what she thinks about executive power, or anti-trust law, or late-term abortions. Instead, we’re supposed to judge her temperament and mien, as if that’s the only reason why she was chosen — as if that’s the only predictive information available to those who want to figure out what kind of justice she will be.
During the confirmation hearings today, Judge Sotomayor considerably misstated of the holding of Kelo v. City of New London, making the decision seem more limited than it actually was. In response to questioning by Democratic Senator Herb Kohl, Sotomayor refused to reveal her view of Kelo, a standard tactic used by previous Supreme Court nominees, but also incorrectly claimed that Kelo upheld a taking in an “economically blighted area”
Not that they think they’re going to derail her nomination, but what better way to pander to the base than to regurgitate the racists attacks made against Sotomayor for the past seven weeks … although this time veiled in concerns about “activism” and “empathy.”
I fully expect Sotomayor to be confirmed by the Democratic supermajority in the Senate. While the nation as a whole doesn’t support her nomination, there simply doesn’t seem to be enough of an immediate cost to her confirmation to make voting for her a short term political risk, which is all politicians care about any way.
The fact of the matter, however, is that activist judges like Sonia Sotomayor and her peers that believe in what Ace so correctly mocked as the “Living Constitution” undermine the laws that holds society together with every decision they make. The constantly shifting standards and “law of the now” approach to jurisprudence means that no law is ever actually law; it is an ever-changing rough guideline. With no fixed compass, the law—as law—ceases to exist.
She is a dangerous choice… and no one knows that better than the radical neophyte America elected as President who appointed her.
—Big Tent Democrat at Crooks and Liars:
Yet, Sessions voted for Samuel Alito, who testified in his confirmation hearings that he does take his own personal background and sympathies into account as a judge.
Sessions demands preferential treatment for white men. He clearly applies a stricter standard to persons who are not white men. Given his history, this is hardly surprising. But it is also the perfect embodiment of the Republican philosophy.
Of course she was disagreeing with Sandra Day O’Connor. Of course she was arguing that someone with her background would be more able to empathize with women, minorities, and the underprivileged than your average rich white boy who grew up to be a judge. Why deny the obvious, especially when it’s so obvious as to be banal?
What’s more fascinating to me than this controversy, though, is that so many bloggers and Twitterers are closely following the hearings as if they were other than a mere formality on the road to all-but-certain confirmation. As Senator Lindsey Graham put it to her yesterday, “Unless you have a complete meltdown, you’re going to get confirmed.”
Why pretend otherwise?
I still in an honest-to-God, no-joking way don’t understand why conservatives who want to vote “no” don’t just say something normal like “I thought Justice Souter voted the wrong way on a number of important cases, I think Judge Sotomayor is likely to vote in a similar way to Souter; I would prefer a judge who votes like Justice Roberts or Justice Scalia; therefore, I’ll vote no.” That’s not insane, it’s not offensive, it’s not foolish, it’s not bizarre—it’s something you’d have to respect
Once again Lindsey hits it out of the park. Have you seen the video of his interrogation of Sotomayor today? If not, you should. You can see an expert attorney at work. He so out-classes Sotomayor it is pathetic.
If you are following the storyline, you might find it interesting to note that Lindsey is making Sotomayor look very bad.
The job of a judge is to be as blind to whom is before the court as the statue of Lady Justice, blindfolded with her scales held aloft to weigh only – only! – the merits of the case before her.
But Sotomayor, in speeches and rulings, has shown a habit of pulling down that metaphoric blindfold to see who is before her, in order to gauge what she thinks of them before ruling.
“Empathy for one party is always prejudice against another,” proclaimed ranking Republican Sen. Jeff Sessions of Alabama, nine words that cut with clarity to disembowel the most artful posings of those who view the Supreme Court as some empowered leveler of our national playing field.
The sports analogy is useful: In the recent NBA finals, the referees could have called ticky-tack fouls against the oft-crowned champion Los Angeles Lakers against the upstart Orlando Magic, a team the officials could have aided by turning their heads when they broke the rules.
The righteous public revulsion at such an outrage should be the same reaction when a judge subjugates the law to some self-created storyline of “fairness.”
The only judicial fairness is found in impartiality, an attribute Sotomayor may claim all week. But she has sufficiently abandoned it to such a degree that only one question remains: Which Republicans will realize that neither political correctness, nor energized Hispanic voters, nor their own self-preservation instincts are as important as protecting the Constitution from this nominee?
NEVER FORGET. The confirmation hearings have been pretty calm thus far but idiots like Sen. Sessions just make it so clear why we need separate branches of government
By the way, as a Puerto Rican woman born and raised in the island, this “wise Latina” nonsense would have been received by my Puerto Rican mother with a most uncordial reality check: accident of birth does not wisdom make.
She’s going to get confirmed no matter what.
The Republicans better save their energy for the Senate debate on government healthcare.
Day one of the questioning part of the Judge Sonia Sotomayor confirmation hearings almost made me feel dirty. Between the Judge backtracking on almost everything she had ever said, and the Democrats kissing up, by the end of the day of hearings I actually felt dirty, like I needed a shower.
……The bottom line is probably none of this matters, Sotomayor will probably be confirmed but at least thanks to Sessions and Graham, Americans will have a better idea of what we are getting.
In his opening statement Monday, Sen. Charles Grassley (R-Iowa) said: “President Obama said that he would nominate judges based on their ability to “empathize” in general and with certain groups in particular. This ’empathy’ standard is troubling to me. In fact, I’m concerned that judging based on ’empathy’ is really just legislating from the bench.” In Tuesday’s hearings, those concerns were echoed more pointedly by Arizona’s Republican Sen. Jon Kyl, who had a spirited back-and-forth with Sotomayor over whether all of her opinions on the bench had a legal basis.
After Sotomayor’s reply — that she applied law and not feelings to facts — Kyl said: “I raised this issue about the president’s interpretation, because he clearly is going to seek nominees to this court and other courts that he’s comfortable with and that would imply who have some commonality with his view of the law in judging. It’s a concept that I also disagree with.”
Judges having empathy, though, is not a problem. Judges are people, and the legal system tends to deal with people in times of crisis. Frankly, I’d be more concerned with a judge who claimed she felt nothing at all than with a judge who bases her decisions on the law, but still manages to drum up some human emotions about the people in front of her.
—Nathaniel Frank in the Huffington Post:
Sessions’ concern was whether Sotomayor believed she could ever fully put aside her own feelings in order to apply the law impartially. “Aren’t you saying there that you expect your background and heritage to influence your decision-making?” he wanted to know? “How can that further faith in the impartiality of the system?”
Sotomayor’s wise Latina response was, “I think the system is strengthened when judges don’t assume they’re impartial, but when judges test themselves to identify when their emotions are driving a result, or their experience are driving a result and the law is not.”
Sessions was unmoved: “So you willingly accept that your sympathies, opinions and prejudices may influence your decision-making.” Sotomayor: “Well, as I have tried to explain, what I try to do is to ensure that they’re not. If I ignore them and believe that I’m acting without them, without looking at them and testing that I’m not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don’t want to do, which is to let something other than the law command the result.”
This is precisely the value of diversity: it can take people who are not living in the bubble of prosperous white male privilege to recognize how the markings of their identity may shape their actions. To ignore the real ways that our experiences, background, ambitions, and emotions affect us is a recipe for the destructive unconscious behavior — discrimination, hypocrisy, dishonesty, infidelity — that so many powerful white men engage in (especially, it seems, politicians). Too many of them live their lives in an emotional closet of which they know not.
The whole show between Sessions and Sotomayor was, of course, a trap. And it was tinged with the destructive cluelessness of white male privilege.
And there’s a lot more reaction HERE.
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Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.