Sotomayor: Rules for the Nomination Battle

The battle concerning the nomination of Sonia Sotomayor is heating up. Republicans are badly outnumbered in the Senate and the chances of halting the nomination are not great. Nevertheless, there is much to learn about Sotomayor and much to be gained by a robust discussion of some of her controversial views and of the proper role of the judiciary.

However, Republicans and their conservative allies outside Congress could well fritter away the opportunity, or worse, create a backlash against themselves. There are, I would suggest, four rules for the nomination battle which will go a long way toward preventing both.

First, the conservative foot soldiers would do well to avoid shooting themselves — or the meager Republican forces in the Senate — in the foot. A Politico report provides a prime example:

[I]n an interview with POLITICO, Manuel Miranda — who orchestrated the letter — went much farther, saying that Mitch McConnell should “consider resigning” as Senate minority leader if he can’t take a harder line on President Barack Obama’s first Supreme Court nominee.

Miranda accused McConnell of being “limp-wristed” and “a little bit tone deaf” when it comes to judicial nominees.

Miranda, now the chairman of the conservative Third Branch Conference, served as counsel to McConnell’s predecessor, then-Senate Republican Leader Bill Frist. He left that job in 2004 amid allegations that he improperly accessed thousands of memos and emails from Democratic staffers — circumstances McConnell’s supporters recalled as they pushed back hard against.

Such blather not only has the distinction of being wrong — McConnell has reined in his troops from rushing to approve of the nomination and held firm on the potential for a filibuster — but also has the added “benefit” of feeding a distracting media story (“conservatives in disarray!”).

Second, insist that the process be robust and thoughtful. There should be no rush to a vote on a judge who has served seventeen years on the bench, has authored thousands of opinions, has delivered speeches, has written law review articles, and has been an advocate in numerous organizations that impact the judiciary. The president is trying to ram home the confirmation before the August recess but there is no reason to do so. If the same schedule that was utilized for current Justices Roberts and Alito is employed, then the confirmation hearings should begin, not end, in August.

Third, the tone which Sen. Lindsay Graham and former Governor and presidential candidate Mitt Romney set on the talk show circuit last week is appropriate. This exchange with Chris Wallace is illustrative:

WALLACE: Well, let me follow up. Newt Gingrich says that she’s a racist. Rush Limbaugh compares her to former Klansman David Duke. Are they right?

GRAHAM: No. They interject themselves in the debate. They’ve got an audience to entertain, and Newt’s a political commentator. I’m a United States senator.

But I do know this, that statement is not about talking about her life experiences. It’s getting from her life experiences a superiority based on those experiences versus somebody else in society. And I don’t want that kind of person being a judge in my case. But I don’t think she’s a racist.

I think she’s — she should be proud of what she’s accomplished in life. But to lead to the conclusion that all the hardship she has gone through makes her better than me is inappropriate.

Likewise Romney declined to get into the name-calling game: “This is a process where you have a individual that is intelligent, well-educated and has an extensive record. She deserves a full and fair hearing. We will have a chance to hear what she has to say.”

The message here: inflammatory invectives get the GOP nowhere; they will need to let the public hear for themselves what Sotomayor believes and reach their own conclusions. And if they really want to avoid being tagged as “racists” Republicans would do well to avoid throwing that, and equally incendiary terms, around themselves. (Yes, there is a terrible double standard for conservatives, but what of it?)

Fourth, the Republicans would do well to remind the public — endlessly — of the Obama precedent. He opposed the nomination of John Roberts because he essentially didn’t like the way he suspected Roberts would rule – and because Roberts was unlikely to substitute “empathy” (i.e., bias) for constitutional interpretation. As he put it:

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

And moreover, Obama saw fit to filibuster now Justice Alito’s nomination on purely ideological grounds. In short, Republicans should remind voters that there is nothing objectionable about opposing, or if need be, filibustering a nomination on ideological grounds — especially if that judge also fails to match up to Roberts’ standard of impartiality and legal excellence.

If Republicans can manage to adhere to these simple rules then a full and informative hearing on the nomination can unfold. The public can observe whether Sotomayor is devoted to interpretation or to policy making, to equal protection under the law or to identity politics, and to impartiality or to bias. And then the Senate votes and political chips will fall as they may.