Back on May 5, in this space, I wrote: "It's hard to imagine that the Senate Republicans would try to filibuster any female nominee who has the requisite legal qualifications - particularly if that female also happened to be Hispanic (federal appeals judge Sonia Sotomayor, who grew up in a New York housing project and would naturally bring a new experiential perspective to the court)."
Now that President Obama has indeed chosen Sotomayor, let's see how the Republicans play it.
Will the party of southern white guys - which is led, in the Senate Judiciary Committee, by Jeff Sessions, a southern white guy - mount a parliamentary effort to block the ascent of an Hispanic woman...and thus risk alienating itself even further from women voters (who backed Obama last fall by 13 percentage points) and Hispanic voters (the fastest-growing demographic group, which backed Obama by 36 points)?
Will the GOP, prodded by its conservative base, dare to assail a woman of color who rose from humble beginnings on sheer merit; who was formally tapped for the federal district bench by a Republican president (George H. W. Bush); and who was confirmed in 1998 for a federals appeals court seat by a Republican Senate, voting 67-29? (By the way, those 67 Yes votes included 25 Republican senators...seven of whom are still serving.)
The answer is, yes, the party certainly will assail her. Actually, the GOP has a duty to challenge the nominee; that's what advise and consent is all about. And lest we forget, Obama as a senator supported the idea of filibustering the Samuel Alito nomination.
But, politically, the Republicans have to tread with care. Considering GOP strategists' concerns that the party risks being relegated to long-term minority status if it continues to tick off Hispanic voters, the party would be well advised to challenge Sotomayor in a substantive manner, forego the usual rhetorical cartooning, and recognize that any filibuster bid would be politically counterproductive.
That said, here's some of what you might expect to hear from the not-Sonia movement in the days ahead. The strategy will be to downplay Sotomayor's race and gender (as much as possible, anyway), and focus on some of her rulings and statements:
1. The New Haven affirmative action ruling. Along with six other federal appeals court judges, she sided with the city's decision to throw out some tests that had been used to evaluate firefighters for promotion. The city tossed the tests because no minority candidates had made it to the top of the promotion list. Some white firefighters challenged the city's action, alleging that they'd been effectively denied promotions for which they were qualified. Basically, Sotomayor and the other appeals judges ruled against the white firefighters. It was a complex case (now on appeal to the U.S. Supreme Court), but the GOP can potentially reduce it to emotional shorthand - by invoking "9/11."
You ask how that's possible? Here's conservative activist Wendy Long, this morning: "On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas."
2. The "liberal activist" soundbite. The loyal opposition has latched onto a passing remark, uttered by Sotomayor during a law student forum in 2005, about how a "court of appeals is where policy is made." Conservatives will therefore say, in essence, that Sotomayor wants to make policy on the bench; ergo, that makes her a "liberal activist judge" and thus unqualified for the high court. But the context of her remark was far less exciting.
While enlightening the law students about the differences between clerking in federal district court and clerking in a federal appeals court, she sought to explain that the former venue rules on individual cases, whereas the latter venue rules on broader issues that serve as controlling legal precedent - i.e., "policy" - for all the district courts in the region. That's a dry explanation you'd find in any law textbook; presumably, however, the GOP will cite her remark as proof that she would ignore the Constitution and take stances that hew to her purported ideological preconceptions. Sure enough, perpetual presidential candidate Mitt Romney brandished the "policy" quote (and distorted its meaning) earlier today.
3. The dim lightbulb theme. We're hearing this one already on the radio and in conservative blogs - that Sotomayor supposedly is not very bright, that she's roughly comparable to Harriet Miers, the Bush crony who was briefly tapped for the high court back in 2005. It might seem odd to equate Sotomayor (top honors grad of Princeton and Yale, and an ex-federal district judge who ruled on more than 450 cases) with Miers (who never served as a judge, and never even wrote any legal treatises), but hey, this is the kind of rhetorical cartooning I mentioned earlier. The dim bulb theme is actually inspired by a recent New Republic article, which quoted some lawyers as saying that the judge is no intellectual heavyweight, but that article was counterbalanced weeks ago by the quotes of other lawyers whose assessments of Sotomayor appear in the Almanac of the Federal Judiciary ("She is very smart" "She is frighteningly smart" "She is very intelligent"). Anyway, does the GOP want to put itself in the position of arguing that an Hispanic woman of obvious high achievement is too dumb for the high court - an argument akin to the old saw that black football players were too dumb to be quarterbacks?
4. The identity-politics soundbite. During a 2001 lecture on cultural diversity and the law, Sotomayor suggested that, with respect to many cases that reach the bench, "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." She was making a broad point about the benefits of bringing a range of experiences to the federal bench; indeed, she also argued that "personal experiences affect the facts that judges choose to see." There's potential grist for the Republicans in those remarks, although they'd need to be careful on this one. Certainly they wouldn't want to be caught implying that only the white male life experience is acceptable for the high court.
All told, the GOP is officially wary of firing on all cylinders, at least for the moment. The Republican National Committee released a very cautious statement this morning, one that has already drawn scorn from conservative activists:
"Republicans look forward to learning more about federal appeals court judge Sonia Sotomayor’s thoughts...Supreme Court vacancies are rare, which makes Sonia Sotomayor’s nomination a perfect opportunity for America to have a thoughtful discussion about the role of the Supreme Court in our daily lives. Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views."
They pledge to be thoughtful?
Spoken like a party that has only 40 senators.