Opposing Sotomayor

Six of the seven Republicans senators on the Judiciary Committee are set to oppose the confirmation of Sonia Sotomayor. We may anticipate, then, that between 30 to 35 Republicans will oppose the nomination, presumably all 60 Democrats voting to confirm. Typically each "No" vote in committee is worth about 6 "No" votes in the Senate. The committee Republicans, however, are more solidly conservative than the party's overall membership, and Lindsay Graham's support does give some permission for other Republican conservatives to vote in favor of confirmation should they be so inclined.

In confirmation votes the problem for those wishing to vote "No" is not the vote itself, but providing a public rationale for that vote. The president's party has no problem; they can simply follow the president's lead. All will vote to confirm, and the most common explanation for that vote will be the judge's superb qualifications, which include her 17 years experience on the bench, her intellect, her background, her judicial philosophy, and perhaps her performance at the hearing, which resulted in more than 60% of the public favoring her confirmation and only 25% opposing it.

Republicans face a different problem. Some will follow the path of Judiciary Committee member Lindsay Graham. He starts from a position that offers some deference to the president as the one authorized to make the selection. Then, having accepted Sotomayor as qualified—with strong endorsements from various legal groups, most prominently the ABA, and her clear experience and record as a judge, along with her background and intellect, he must assess whether her extra-judicial statements established a bias and judicial philosophy that would sufficiently offset those positive attributes to permit a "No" vote. Ultimately, Graham decided he should take Sotomayor at her more moderate word and proceed to vote for confirmation.

John Kyl, Republican senator from Arizona, has no such problem. It was clear from his opening statement that he, along with Jeff Sessions, was set to pursue a negative partisan role. By characterizing Sotomayor's extra-judicial statements as partisan, biased, and injudicious, Kyl created a false dichotomy by which Republican opposition could be justified. Forget her bench record, that of being a judge with the apparent temperament and intellect to serve as a Supreme Court justice. Her past extra-judicial statements betrayed a bias that she would be unable to rein in as a Supreme Court justice. If Sotomayor stands by her statements, then one should vote "No" according to the Kyl logic. On the other hand, any attempt to explain away or moderate those statements can be characterized as a confirmation conversion, saying what she thinks they want to hear in order to gain their favor. This will be the basis for Republican opposition. Her performance at the hearing will have been insufficient to assuage Republican concerns that her biases will not adversely affect her judicial decision-making on the Court.

When Republican presidents in the 1980s adopted the strategy of appointing Federal Appeals Court judges to the Supreme Court, Republican senators followed by arguing that such judges had already been confirmed by the Senate once and that confirmation to the Supreme Court should follow. Judicial experience was key, and the lower court judicial record was sufficient evidence of their ability and temperament. Sotomayor presents a problem because she has more experience than any of them and her record supported Democratic claims of integrity and temperament. Indeed, the Ricci case could be interpreted as an example of Sotomayor's judicial restraint while exposing conservatives as being no better than liberals when it comes to seeking judicial outcomes consistent with one's political ideology. Now Republicans have had to admit that the Supreme Court provides a greater opportunity for personal values and beliefs to play a role in decision-making. To claim that such an affliction is only a liberal trait seems far-fetched but one Republican senators seem willing to make.

Conservatives, of course, are convinced that Sotomayor's decisions will closely track those of Justice Souter, which puts her in agreement with the more liberal wing of the Court—Souter and Ginsburg having an 87% agreement rate in the 2007-08 term of the Court's nonunanimous cases. (Typically about half to two-thirds of the Court's decisions have split opinions.) By the way, Alito and Roberts have similar agreement rates, as do Scalia and Thomas, the latter pair's agreement with Souter being around 35%. Moreover, they fear she may become a more vocal and forceful presence on the Court than Souter, a stronger (and younger) liberal counterpoint to Scalia.

Republicans are right to oppose Sotomayor if they want to oppose one whose liberal values will influence her decision-making just as Democrats were right to oppose Roberts and Alito from the perspective that their conservative values would influence their decision-making. What we need from both sides is an admission of that as the basis for their votes.