Federal Courts and Nominations

Sonia Sotomayor hearings are the first skirmish in ideological war over Supreme Court’s future

Almost nobody in Washington, including her harshest critics, expects Sonia Sotomayor’s Supreme Court nomination to fail. Still, there is a palpable sense of history in the air as the Senate Judiciary Committee prepares to gather in the cavernous Hart Senate Office Building hearing room on Monday for her confirmation hearing.

The reasons for the high court drama are both intensely personal and immensely ideological.

Sotomayor, a 55-year-old federal appeals court judge from New York City, would become the first Latina, the first Hispanic female and only the third woman to wear the Supreme Court’s black robes in the institution’s 220-year history. But her selection, the first of Barack Obama’s presidency, has much broader implications, as well.

With five of the court’s eight current justices aged 70 or older, both the face of the court and its direction for a generation could change significantly in the next few years.

Doug Kendall, president of the liberal Constitutional Accountability Center, calls the Senate hearing “a small skirmish in a much larger war between the progressives and conservatives over the future of the Supreme Court and the meaning of the Constitution.”

That’s why the left and the right are both planning to use the Sotomayor hearings to set down some important political markers for the battles still to come. Here are some of the things to watch for at the Sotomayor confirmation hearing:

The battle for the mainstream:

Conservatives and liberals alike will push separate definitions of the political mainstream – that broad philosophical center where most Americans claim to reside.

Sotomayor supporters, including former FBI director Louie Freeh, will portray her as a crime-fighting prosecutor and tough-on-crooks judge.

Democrats will point to a Syracuse University study released Thursday finding that Sotomayor typically handed out longer prison sentences than her fellow New York judges, especially to white-collar criminals, when she served as a federal trial court judge.

“She is a model jurist,” said Chuck Canterbury, the president of the Fraternal Order of Police. “Tough, fair-minded and mindful of the constitutional protections afforded to all U.S. citizens.”

Republicans will cite her decisions on sensitive social issues such as affirmative action, abortion and gun rights to claim that she is to the left of the man she’d replace, retiring Justice David Souter.

“Her record of activism in support of a radical, pro-abortion agenda is clear and documented,” said Charmaine Yoest, president of Americans United for Life, who is scheduled to testify at the confirmation hearing. “The American people will not tolerate a nominee who is outside the mainstream of American public opinion.”
The partisan attack dogs:

On the Republican side, maverick conservative Sen. Tom Coburn of Oklahoma is the most likely candidate to clash sharply with the nominee.

Iowa’s Chuck Grassley can be blunt and ornery.

And the committee’s top Republican, Jeff Sessions of Alabama, is one of the most conservative members of the Senate.

Among Democrats, Sen. Sheldon Whitehouse of Rhode Island has a 100 percent pro-Obama voting record this year.

New York’s Chuck Schumer never shies away from a fight. And former comedian Al Franken, who played the late Illinois Sen. Paul Simon in a famous Saturday Night Live parody of the 1991 Clarence Thomas hearings, gets his chance to make a first impression as the new senator from Minnesota.

Competing narratives:

You’ll hear a lot about Sotomayor’s compelling life story: child of public housing, daughter of a widowed mom, scholarship student at Princeton, young prosecutor, nominee chosen for the federal bench by a Republican president, the first Hispanic nominated for the Supreme Court.

The Republican narrative will focus on her most controversial writings and speeches, suggesting that she would not be color-blind or open-minded.

Critics cite her 2001 comment that “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.”

Wendy Wright, president of the conservative Concerned Women for America legislative action committee, contends that Sotomayor “lacks the primary characteristic required of a judge – impartiality.”
The strategies:

Democrats will try to focus on her judicial experience – more than any high court nominee in a century – and a record they will repeatedly describe as mainstream.

Supporting evidence: The American Bar Association gave Judge Sotomayor its highest rating, “well qualified.”

Look for Texas Sen. John Cornyn, chairman of the Senate Republicans’ campaign committee, to try to tightly focus GOP attention on Sotomayor’s judicial record on issues such as gun rights, property rights, employment discrimination and the proper role of federal judges.

Other GOP senators will bore in on issues that appeal to their base, including affirmative action, abortion and voting rights.

The tactics:

Sen. Lindsey Graham, R-S.C., says Sotomayor will be rejected only if she “performs poorly” this week.

Some Republicans will press the nominee with pointed questions in an attempt to make her lose her cool and look temperamentally unfit for the job.

Democrats will largely play defense and hope that aggressive GOP tactics make Republicans look like sexist pigs, moralistic prigs or retro racists.

The man with the gavel:

Judiciary Committee Chairman Patrick Leahy, D-Vt., will be a key player in the hearings.

He will predictably laud Sotomayor’s qualifications, of course.

But as the first committee member to question the star witness, he is likely to preemptively explore sensitive subjects to allow the nominee to explain her positions in a non-adversarial way.

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