Federal Courts and Nominations

Left and right both let down by Sonia Sotomayor hearings


Sonia Sotomayor’s measured confirmation performance may have served her well, but it left the bases of both parties feeling that they’ve missed an opportunity.

Liberals are concerned that Sotomayor’s non-controversial approach – she largely declined to take positions on major issues, and seemed to side with conservatives on some constitutional matters – cost the Democratic party a critical opportunity to effectively express and advocate for its bedrock judicial philosophies.

The question, to some, is: Why retreat now when the nomination was a sure bet since Democrats have a supermajority in the Senate, and Republicans haven’t put up a united front of opposition?

“It’s troubling,” said Louis Michael Seidman, professor of constitutional law at Georgetown University and a former law clerk to the late Supreme Court Justice Thurgood Marshall. “I don’t think that she had to do this.”

On the right, conservatives are asking: If Republicans won’t fight tooth-and-nail to derail a Supreme Court nominee they find out of the mainstream, what will they fight over?

“You just really don’t have the sense there is fire in the belly on this one,” said Linda Chavez, head of the Center for Equal Opportunity, who testified against Sotomayor at the hearings. “They just didn’t seem to have the toughness.”

The fallout from Sotomayor’s hearings stems from conflicting political pressures – and from a confirmation process that allows a nominee to dodge most hot-button issues.

The White House and Senate Democrats want Sotomayor confirmed with a big bipartisan majority – enough to show the public that President Barack Obama has chosen a mainstream judge and enough to give him some room to pick a second liberal nominee if he gets the chance. Democrats spent much of the hearings touting her 17-year record as a judge – not the larger constitutional issues surrounding her nomination.

To win GOP support, she stuck to the playbook of recent Supreme Court nominees of both parties: avoid taking personal positions; largely agree with skeptical senators; decline to comment when there’s a matter in litigation; and repeatedly affirm that a judge’s job is to apply the law like a machinist.

“I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart,” Sotomayor said in appearing to break from Obama’s so-called “empathy” standard for judges. “They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law.”

Sotomayor described the Constitution as a “timeless document” and said that “what changes is society,” and “what facts a judge may get presented.”

Doug Kendall, president of the liberal Constitutional Accountability Center, said retreating from the idea of a living or evolving Constitution and empathy made sense from a strategic standpoint.

“The problem I saw in the hearings is that there was nothing in its place,” Kendall said. “There were missed opportunities for Judge Sotomayor to articulate how the Constitution itself points in a progressive direction, and how the law is about broader ideas of justice – not simply calling balls and strikes.”

Republicans had their own political pressures as well. With seven GOP men on the Judiciary Committee, they did not want to appear overly aggressive with Sotomayor, who would become just the third female justice. And given that they lack enough votes to sustain a filibuster, even if they wanted to, attempting to delay the seating of a nominee who will almost certainly be confirmed would likely cost them support from Latinos, a fast-growing constituency that is already voting heavily Democratic. As a result, they’re backing down on earlier demands to delay a final vote until September.

“In any case, conservatives will not be happy if the GOP rolls over with regard to Obama’s politically motivated goal of getting Sotomayor confirmed before the August recess,” said Curt Levey, head of the conservative group Committee for Justice.

While some conservatives say that GOP senators effectively laid out inconsistencies in her testimony, activists want the slow-news month of August – when Congress is on recess – to build a campaign opposing her nomination.

Charmaine Yoest, head of the anti-abortion group Americans United for Life who testified against Sotomayor, said that an extra month would be helpful to her cause.

“The more time we have to educate people, the more we would continue to emphasize to people that a vote for her is a vote for abortion on demand without any restrictions whatsoever,” Yoest said.

Sen. Jeff Sessions (R-Ala.) pointed to her statement that she agrees with conservative Justices Clarence Thomas and Antonin Scalia’s position on using foreign law to interpret domestic law as an example of how Republicans were able to use her testimony to mark a clear delineation between the legal philosophies of the two parties.

“Sometimes our Democratic colleagues and the liberal community in America want the court to do for them that which they can’t do at the ballot box through their elected representatives,” said Sessions, the top Republican on the Judiciary Committee.

But through a week of hearings, the GOP was unable to knock her nomination off track, and Sotomayor will likely get approved with a number of Republicans in support. Several GOP senators in the Judiciary Committee – Sens. Orrin Hatch, Lindsey Graham, Jon Kyl and Chuck Grassley – are weighing whether to vote for her nomination, and a trio of Republicans not on the panel – Sens. Olympia Snowe, Dick Lugar and Mel Martinez – said Friday they would vote on the floor to confirm her.

Nan Aron, president of the liberal Alliance for Justice, said that “given the current confirmation process that exists, it was her job to get confirmed.”

Though Sotomayor refused to be pinned down on several key issues, and at times sounded much like the two GOP appointees before her, liberals are confident she will be their ally on the court.

“The answers that Supreme Court nominees give on questions ranging from Roe v. Wade and foreign law are remarkably similar,” said Caroline Fredrickson, head of the liberal American Constitution Society.

This article can be found in its original form here.

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