An expanded version of the Sunday print column, with an addendum on another topic:
Unless Senate Republicans manage at the eleventh hour to unearth a juicy revelation about Sonia Sotomayor – for instance, by proving that she's the biological mother of Michael Jackson's children – they're not likely to lay a glove on her during the confirmation hearings that begin today.
In fact, by midweek, the news channels may well be so bored with the hearings that they'll be tempted to re-run footage from the Jackson memorial service and to seek out psychics who claim to have interviewed Jackson in death. Must-see TV requires a certain amount of drama - but Sotomayor's path to the U.S. Supreme Court seems virtually assured, with minimal drama, for a quartet of reasons:
There's no smoking gun. For the past six weeks, Republicans have looked in vain for an issue that would galvanize the public and compel red-state Senate Democrats to vote against her. The flap over her eight-year-old comment – about how a "wise Latina" jurist might make "better" decisions – basically flamed out a month ago, and varying majorities of Americans have since told pollsters that they support her.
At the hearings, Republicans will surely cite her appeals court ruling against the white New Haven firefighters as proof of ethnic "favoritism." But that issue has gone nowhere, perhaps because of statistics that the GOP has sought to ignore: As a federal appeals judge, Sotomayor has participated in roughly 90 race-related cases – and has rejected the discrimination claim 80 times.
Republicans have tried to paint her as a radical outside the mainstream, but at the hearings they'll hard-pressed to explain away the new Senate Judiciary Committee statistics which show that, as an appeals judge, Sotomayor has voted to uphold 92 percent of the criminal convictions that have come before her – and that she has agreed with her Republican-appointed colleagues 97 percent of the time.
Some conservative activists think she's vulnerable on guns, because in several cases she failed to endorse an unrestricted right to bear arms. But Republicans will have trouble pressing that hot button, given the fact that Sotomayor has now been endorsed by the Fraternal Order of Police, which on Wednesday lauded her as "a model jurist: tough, fair-minded and mindful of the constitutional protections afforded to all U.S. citizens."
The national police group doesn't buy the conservative argument that Sotomayor is anti-gun, and no wonder: her two gun rulings are not ideal grist for the NRA. In one case, she sat on a federal appeals panel that affirmed a trial court conviction of a guy who claimed he had an unrestricted right to carry around a homemade weapon that consisted of two sticks connected by a chain. New York bans such weapons. Sotomayor basically ruled against the criminal (a stance that conservatives presumably would applaud), while respecting a lower-court verdict that relied on legal precedent (she was following the law and exercising judicial restraint, which conservatives presumably would applaud). And in a separate case, she affirmed the lower-court conviction of a drug dealer who had complained that New York's law forbade him from carrying a gun. What are the senators going to do, champion the rights of a drug dealer?
In politics, it's never easy to stop something with nothing. When the American Bar Association announces, on the eve of the hearings, that it has given Sotomayor its highest rating ("well qualified," the same ABA grade bestowed upon John Roberts and Samuel Alito), that's a wake-up call for Republicans to counter with something. They're still looking.
A flawed action hero. Regarding the aforementioned white firefighter case, Senate Republicans will bring in Frank Ricci, the lead plaintiff, who passed the New Haven test but didn't get the job. Ricci presumably will put a human face on the issue, illustrating the evils of affirmative action. The GOP badly needs a substantive version of Joe the Plumber, somebody for whom they can express empathy, but there's a big problem with Ricci - namely, his back story.
Turns out, he's a guy who loves to sue - the kind of serial litigant that Republicans normally attack.
He first sued New Haven in 1995, claiming that he was rejected for a firefighter's job (795 applicants, 40 openings) because he was dyslexic - an alleged violation of a federal disabilities law. The case was settled out of court two years later. By that time, he was working for a different fire department - where he was fired after only eight months. He repeatedly threatened to sue, claiming he had been discriminated against because he was a whistle-blower who had targeted the fire chief. The case wound up in the state government bureaucracy. His grievances against the fire chief were later found to be groundless, and the state upheld his firing. He again threatened to sue, but ultimately the case went away, as did he. Then came his New Haven lawsuit, in 2004.
It's amusing to see the Republicans promote, as their new hero, a guy who has repeatedly painted himself as a victim of discrimination, and has repeatedly used the courts and the bureaucracy to litigate his grievances. Isn't that the kind of behavior they typically assail?
A flawed GOP point man. Here's a smart strategy: During the Senate Judiciary hearings, the Republican assault on the first Hispanic high court nominee will be led by a white guy from Alabama who in the past has made hostile remarks about civil rights and people of color.
This is yet another sign of the GOP's lowly status as a regional party. The point man, Senator Jeff Sessions, has been assailing Sotomayor for her past service as a board member of the Puerto Rican Legal Defense and Education Fund, a civil rights group that Sessions has called "extreme." But this is the same person who once attacked the NAACP as a "communist-inspired" and "un-American" group that "forced civil rights down the throats of people."
These remarks came to light back in 1986, when Sessions, a young prosecutor, was himself nominated for a federal judgeship. The senators ultimately rejected his nomination. They also didn't like the fact that prosecutor Sessions had investigated activists who were signing up blacks to vote – and that, according to sworn testimony, he had once addressed a black attorney as "boy."
How can the Republicans go after Sotomayor in a credible fashion with this guy leading the charge?
They're boxed in, politically. Republicans are already in bad shape with both Hispanic and female voters. It would ill behoove them to be perceived as beating up on a Hispanic female nominee. On national television, no less. As Mark McKinnon, former campaign consultant to George W. Bush, warned not long ago, an assault on Sotomayor would "make the party look bitter, mean, tone deaf, and out of touch."
Undoubtedly, Sessions and his fellow Judiciary Republicans will work to get the tone right. They'll try to press her for specifics about certain rulings and statements, to needle her respectfully, in the hope that she will lose her cool and give them the gift of a soundbite. I doubt she'll take the bait. If she doesn't, it's hard to see what her inquisitors could possibly do next.
Conservative activists have been pushing for an aggressive posture, but elected Republicans would prefer not to commit political suicide. The math is inescapable. Hispanics are the fastest-growing cohort in the electorate, a pivotal group in a growing roster of swing states, including Colorado, Florida, Nevada, New Mexico, North Carolina, and Virginia. Those six states – all previously red – swung to the Democrats in the '08 presidential election with considerable help from Hispanic voters.
Hispanics favored Barack Obama over John McCain by a whopping 36 percentage points; four years earlier, they'd favored the Democratic candidate by only nine points. The best Republican strategists, recognizing the Hispanic trend line, have been warning that GOP risks losing these voters for a generation – and consigning itself to minority status - unless it can erase its image of intolerance.
Hence, the party's fundamental handicap at the Sotomayor hearings. If the GOP gives off the vibe that this Hispanic woman is ill-qualified for the court – no matter how hard she has worked and how high she has risen, no matter how many academic honors she has won, no matter how much jurisprudential experience she has accrued – the party will lose far more than just this confirmation battle.
Let's briefly check in with the latest conservative cartoon character. And, no, I'm not referring to "family values" Senator John Ensign - whose daddy, the casino mogul, has ponied up $96,000 for junior's former lover (the kind of bailout that Joe Kennedy used to do for Jack). I'm instead referring to Jim DeMint, the junior Republican senator from South Carolina, who last week offered a fascinating (and under-reported) treatise on 20th century history.
DeMint has long been a tad out of the mainstream - he once insisted that single mothers living with boyfriends were not morally fit to educate our children - but his remarks last Wednesday night at the National Press Club were particularly entertaining. While promoting his new book, Saving Freedom, he basically called President Obama a Nazi.
As a nation today, he said, "we're about where Germany was before World War II, where they became a social democracy. You still had votes, but the votes were just power grabs."
There are legitimate ways to question Obama's policies without lapsing into demagoguery; worse yet, DeMint's hyperbole was barely coherent. He appeared to be saying that the Nazis were a "social democracy," given the fact that they came to power in 1933 and didn't launch the war until 1939. (If banning Jews from public life and building the autobahn constitutes a social democracy, then, yes, the Nazis meet that definition.) Or maybe DeMint was really referring to the pre-1933 Weimar Republic, which actually was a social democracy...and therefore he has no idea when Hitler came to power.