'Wind in dry grass'



To paraphrase the poet T. S. Eliot, Senate Republican opposition to Sonia Sotomayor basically ended yesterday - not with a bang, but a whimper.

In theory, the U.S. Supreme Court's Monday decree - a 5-4 ruling that favors white New Haven firefighters, and reverses a federal appeals court decision that Sotomayor joined - should be catnip for the GOP. In theory, all the elements of a classically simplistic attack message are ready and waiting.

For starters, Senate Republicans could try to paint the high court ruling as a major embarrassment for Sotomayor; here she is, seeking to ascend to the high court, yet her own prospective colleagues have just reversed her - just as she has been reversed on other cases in the past. Secondly, they could try to argue that Sotomayor's appeals ruling - which slapped down the white firefighters in a mere 134 words - was essentially an endorsement of affirmative action for minorities, at a time when most Americans tell pollsters that they oppose affirmative action. Thirdly, the Republicans could try making the broader case that Sotomayor's affirmative action empathy is typical of how this so-called "wise Latina" would be likely to rule in other cases.

And yet the Republicans have barely uttered a whimper.

Of course, there have been a few scattered exceptions. Senate minority leader Mitch McConnell said yesterday that Sotomayor, when ruling against the white firefighters at the appeals level, "may have allowed her personal or political agenda to cloud her judgment," and his colleague John Cornyn of Texas uttered a few carefully-chosen words about the need for "evenhanded application of the law." The strongest anti-Sotomayor attack was arguably launched by Tom Price, a Republican from Georgia, but, as a House member, he can't vote on the confirmation anyway. Price insisted that Sotomayor "has a record of being blinded by empathy for one group while endorsing discrimination against others," and I'll shred that statement momentarily. All told, the once-vaunted Republican message machine was functioning yesterday like a '92 Chrysler in need of a valve job...and its owners appeared to prefer it that way.

The question is why the Republicans are being so reticent. The short answer is that the Republicans have finally seen the light and realized that full-blown opposition to Sotomayor would be tantamount to political suicide, given the fact that most Hispanic voters (members of the fastest-growing cohort in the electorate) already view the GOP as a toxic brand.

The longer answer is that the high court's reversal of Sotomayor in the firefighter case does not easily lend itself to political exploitation; put another way, it's no magic bullet. If the Republicans tried to fire it, they'd blow off their own toes. They'd get roughly the same political mileage out of Ricci v. DeStefano as the John McCain campaign got out of ACORN.

Here's why:

1. Some conservative activists, anticipating that the high court would reverse Sotomayor in the white firefighter case, have claimed for weeks that such an event would be typical for Sotomayor, because she supposedly has "an extremely high rate of her decisions being reversed." It is, as always, downright fascinating to behold the conservatives as they simply make stuff up.

Sotomayor has authored roughly 380 appeals court decisions, and she has now been reversed by the highest court...four times. The activists apparently consider that to be an "extremely high" reversal rate, but here's the thing: Bush nominee Samuel Alito, prior to his own ascent, had been reversed by the highest court...four times. And on a fifth occasion, Justice Sandra Day O'Connor, while reviewing one of Alito's appeals court rulings, tore the guy apart in great detail, assailing his "logic, approach, and conclusions" in a key abortion case.

Maybe it would look bad if Sotomayor had been reversed, say, three times in rapid succession, right on the eve of her nomination. Imagine the outcry on the right. Yet that's exactly what happened to federal judge Warren Burger in 1969. He was reversed by the high court three times that year - the same year that Richard Nixon successfully tapped him to become the new Chief Justice.

2. Conservative activists have hoped to paint Sotomayor's appeals ruling against the white firefighters as evidence of her pro-minority "agenda." In the words yesterday of Georgia congressman Price, she supposedly "has a record of being blinded by empathy for one group while endorsing discrimination against others." Another lie. Her record is precisely the opposite.

Tom Goldstein, a lawyer and lecturer at the Stanford and Harvard Law Schools, and author of the Scotusblog website, recently tallied the 97 race-related cases that Sotomayor and her colleagues have handled during her 11 years on the appeals bench. Of those 97 cases, 88 ultimately involved discrimination issues. In those 88 cases, take a guess how many times Sotomayor and her colleagues ruled in favor of the discrimination claimants:

Ten times. Which means that her batting average in favor of the discrimination position was approximately .114.

Moreover, on a few occasions, she even dissented in favor of the white person; most notably, in a New York City police department case, she argued in vain that a white bigot should not be fired for circulating racist materials.

3. More than a month after Sotomayor's debut as nominee, there's scant evidence that the public is troubled by her ethnicity or her views. The latest ABC News-Washington Post survey, released Sunday, reports that only 22 percent of Americans have concerns that her racial background might play a role in how she decides cases. All told, 62 percent of Americans say that she should be confirmed. That's the highest percentage for a Supreme Court nominee in several decades (as measured by the ABC-Post poll, then and now), which strongly suggests that, while Americans are broadly opposed to affirmative action, they don't believe that Sotomayor should be judged on that one issue.

All of which is why, with respect to Sotomayor and the impending confirmation hearings, the Republicans apparently have so little to say. Over to you, T. S. Eliot:

Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass


Much like Bill Murray in the film Groundhog day, erstwhile Republican senator Norm Coleman keeps waking up to discover that he has lost the same election. Today, it happened to him yet again