How Far Will Sotomayor's Opponents Go?
Now that the President has named Second Circuit Court of Appeals Judge Sonia Sotomayor as his first Supreme Court nominee, Republicans will have to make up their minds exactly how far they want to go in opposing her confirmation, which is virtually certain absent some startling revelations during hearings.
It's not as though there's any uncertainty about their line of attack on Sotomayor; it's been scripted for weeks, as noted by Ben Allen and Jonathan Martin in Politico today:
Previewing the right’s planned reaction, Wendy E. Long, counsel to the conservative Judicial Confirmation Network, said in a statement: "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.”
It's this last clause in Long's statement that presents the really tempting, and potentially self-destructive conservative line of attack on Sotomayor. To see why it will be tempting, check out this long fretful article by National Journal's Stuart Taylor published this weekend, complaining about scattered comments by Sotomayor suggesting that she views her gender and ethnic identity as legitimately and positively affectign her thinking as a judge. And remember that her most famous case involved a claim of reverse discrimination against a municipality by white male firefighters.
Conservatives could definitely try to turn Sotomayor into a latter-day Lani Guinier, and turn her confirmation hearings into a white male pity party, all about identity politics. This would not, of course, go over very well with Latinos, who will naturally feel strongly about their first-ever Supreme Court nominee, and who probably think white men have been pretty well represented in the Court's history.
Some conservatives may seize on the already-infamous New Republic article by Jeff Rosen suggesting that unnamed former clerks and associates think she's insufficiently brilliant and/or temperamentally unsuited to be on the Court. This is an even more perilous line of attack, since the whole premise of Rosen's piece was the progressive hunt for a strongly ideological judicial titan who could go toe-to-toe with the Court's conservatives. Most regular folks will also have a hard time accepting that someone who graduated summa cum laude from Princeton and was then on the law review at Yale isn't smart enough for the Court. And she is classically prepared for the appointment, having taken a textbook path to the Court, from prosecutor to district court to Court of Appeals. She doesn't have the Harriet Miers problem of a skimpy resume.
Given the built-in investment that conservatives have in Supreme Court fights these days, Sotomayor will not get anything like a free ride. But there's a chance that in the Senate itself (though not out there in the advocacy groups, where apocalyptic talk will predominate) Republicans will keep some powder dry, as noted by Jeff Goldstein at SCOTUSblog:
The most likely dynamic by far is the one that played out for Democrats with respect to Chief Justice Roberts. Democratic senators, recognizing the inevitable confirmation of a qualified and popular nominee, decided to hold their fire and instead direct their attacks to President Bush’s second nominee. Justice Alito was the collateral damage to that strategy. Here, with Justice Stevens’s retirement inevitable in the next few years, Republican senators are very likely to hold off conservative interest groups with promises to sharply examine President Obama’s second (potentially white male) nominee.
We'll see soon enough, once Sotomayor gets through her first few days in the harsh glare of national publicity.
UPDATE: Brian Beutler has a good summary of the whole Jeff Rosen angle on Sotomayor at TPM today.
UPDATE II: Jeff Rosen himself has now put up a post at TNR endorsing Sotomayor's confirmation, and rejecting use of his earlier remarks about her to deny her a position on the Court:
Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court--not that she didn't have the potential to be a fine justice.
This doesn't completely eliminate the damage wrought by his earlier article, but will at least force conservatives to put in an asterisk when they quote it.