The combination of an over-rehearsed witness and
opposition senators fighting without much ammunition robbed the Sonia
Sotomayor confirmation hearings of their expected drama. Those who watched
the proceedings were left only with the occasional reminder of past Supreme
Court battles and the promise of more to come.
President Obama's choice to succeed Justice David Souter and become
the first Hispanic woman on the Supreme Court has a compelling personal
story, and she displayed a tough-minded intellect that will make her a
force on the bench when she dons the black robe in September. But Sotomayor
had been so prepped by the White House that she showed almost nothing of
her personal philosophy or personality. Her expression rarely changed from
a serious frown, and her busy note-taking on the senators' questions masked
any show of emotion.
During George W. Bush's presidency, when Democrats had the chance to
examine his Supreme Court appointees, John Roberts and Samuel Alito, they
found plenty to question in the work those two had done for past Republican
administrations. Nothing in Sotomayor's early career as a prosecutor and
corporate lawyer provided equal riches for the GOP.
Instead, Republicans had to build a case against Sotomayor out of
fragments of sentences from her many speeches. Some of them can be read as
encouraging women and minority judges to bring their special sensibilities
to bear in their work on the bench.
But the Republicans found nothing in her hundreds of rulings in the
federal courts in New York to suggest that Sotomayor gives free rein to
ethnic-based or ideological impulses. She has been as careful in her
verdicts as in her facial expressions.
With this first Obama nominee clearly ticketed for confirmation, the
Republicans used the hearings to remind voters of Obama's own history of
partisanship in the treatment of judicial nominations. As a senator for
Illinois, Obama voted against both of Bush's Supreme Court choices and
joined in filibusters to block others named to the appellate courts.
Republican Sens. Jeff Sessions and Orrin Hatch had a good time quoting
Obama's words back to him, including the many instances in which he said
that senators are well justified in looking beyond the intellectual and
professional qualifications of the nominated judges and examining "their
broader vision of what America should be."
That is, they pointed out, a political test, and for those who would
like to believe that politics stops at the courthouse door, it is a no-no.
Republican Sen. Lindsey Graham of South Carolina, more realistic, told
Sotomayor he knew that "no Republican (president) would have chosen you" —
but still could imagine voting for Obama's choice himself.
By making the best of their meager case against Sotomayor, the
Republicans signaled Obama that they are ready to fight harder if he names
to the bench other liberals less armored by their personal histories.
But the Democrats are clearly ready for that fight, fueled by their
resentment of the two Bush appointees who have already moved the Supreme
Court in a markedly more conservative direction. Chief Justice Roberts won
22 Democratic confirmation votes, not only by his obvious legal credentials
but by his bland assurances that he saw the job of a justice as akin to
that of a baseball umpire — enforcing the rules, not rewriting the
rulebook.
One after another, Judiciary Committee Democrats told the Republicans:
You fooled us once, but never again. Sen. Dianne Feinstein of Calif., for
one, pointed to the long list of significant decisions on which Roberts and
Alito have led or joined a 5-4 majority, overruling precedent and narrowing
individual rights. "I do not believe that Supreme Court justices are merely
umpires calling balls and strikes," Feinstein said. "I believe that they
make the decisions of individuals who bring to the court their own
experiences and philosophies" — the very thing that Republicans say they
worry about in Sotomayor's speeches.
Strip away all the rhetoric and what you have left is a certainty that
partisanship and deeply felt battles will continue to rage every time there
is a vacancy on the Supreme Court.
