The White House has just announced Sonia Sotomayor as its Supreme Court nominee. The Senate Judiciary Committee will likely hold hearings in the third week of July, permitting written committee questions the following week and a floor vote before Congress leaves for its summer recess on the weekend of August 8. Absent the discovery of an ethical transgression, the Democratic majority on the Senate guarantees confirmation, so the new Justice will take her seat when the Court opens its 2009 Term on October 5.
Well before the hearings and votes, the immediate struggle will be to define both the nominee and the president (in light of his selection).
Here, I discuss the lines of attack.
The attacks are inevitable and tremendously regrettable, just as they were for Chief Justice Roberts and Justice Alito. A cottage industry--literally an industry, given the sums of money raised and spent-now exists in which the far left and right either brutalize or lionize the President's nominees. Because the absence of controversy means bankruptcy, it has to be invented by both sides, whatever the cost to the nominee personally and to the integrity of the judiciary nationally.
That is not to say that there aren't legitimate--in fact, critical--debates over issues like judicial philosophy and the proper way to interpret the Constitution that can and should be front and center in a Supreme Court confirmation hearing. But the most extreme interest groups and ideologues are transparently uninterested in that reasoned debate as they rush to caricature the nominee and the opposing viewpoint.
Because proponents' and opponents' claims about nominees are provided for public consumption through the mass media, they involve bumper sticker messages; there is not much nuance. Almost always, they collapse into assertions of ideological extremism, as when some on the left attempted to portray John Roberts as a (secret) ideologue and single-minded tool of the government and corporations against individuals.
The public reaction to Roberts' confirmation illustrates that Americans thankfully still think for themselves and that the White House's most effective tool may be the nominee herself. But beyond a short statement at the announcement and fleeting remarks during courtesy visits to Senators, the nominee's appearance at actual hearings won't come for six weeks, which could be too late to repair her image if a sustained assault from the right actually took hold in the meantime. Controlling the narrative in the short-term will be essential.
I discuss below the four most probable lines of attack that committed ideologues are likely to advance, but to my mind basic political considerations make it very unlikely that mainstream Republican politicians will vocally join the criticism. The view of some that the nomination of Sotomayor will require the President to invest additional political capital seems completely wrong to me. Absent of course some ethical problem, the President simply has the votes.
Even more important, Republicans cannot afford to find themselves in the position of implicitly opposing Judge Sotomayor. To Hispanics, the nomination would be an absolutely historic landmark. It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.
Equally significant for not only Hispanics but all Americans, Sotomayor has an extraordinarily compelling personal narrative.* She grew up in a housing project, losing her father as an adolescent, raised (with her brother) by her mother, who worked as a nurse. She got herself to Princeton, graduating as one of the top two people in her class, then went to Yale Law. Almost all of her career has been in public service-as a prosecutor, trial judge, and now appellate judge. She has almost no money to her name.
For Republican Senators to come after Judge Sotomayor is not only hopeless when it comes to confirmation (something that did not deter Democrats in their attacks on Roberts and Alito) but a strategy that risks exacting a very significant political cost among Hispanics and independent voters generally, assuming that the attacks aren't backed up with considerable substance.
Objectively, her qualifications are overwhelming from the perspective of ordinary Americans. She has been a prosecutor, private litigator, trial judge, and appellate judge. No one currently on the Court has that complete package of experience.
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.
Overall, the White House's biggest task is simply demonstrating that Judge Sotomayor is the most qualified candidate, not a choice based on her gender and ethnicity. The public wants to know that her greatness as a Justice is informed by her personal history and her diversity, not that it is defined by those characteristics. For that reason, the focus on "empathy"--rather than the "wisdom" or "good sense" of the nominee in light of her experience--plays out poorly, in my opinion.
Opponents' first claim--likely stated obliquely and only on background--will be that Judge Sotomayor is not smart enough for the job. This is a critical ground for the White House to capture. The public expects Supreme Court Justices to be brilliant. Harriet Miers was painted (frequently, by conservatives) as not up to the job. The same claim (absurd to anyone who has talked with him) is still made by the left about Clarence Thomas. By contrast, John Roberts was described as brilliant and Sam Alito as exceptionally smart.
The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn't the match of the other Justices.
The second claim--and this one will be front and center--will be the classic resort to ideology: that Judge Sotomayor is a liberal ideologue and "judicial activist." (Put to the side the emptiness of the labels--i.e., that one person's principle (e.g., a decision invalidating state laws authorizing punitive damages) is another's "activism.") There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left. Our surveys of her opinions put her in essentially the same ideological position as Justice Souter. In the ideological cases where her rulings have been reviewed by the Supreme Court (for example, Malesko and the pending Ricci case), her views have aligned with the left of the current Court.
The third claim--related to the second--will be that Judge Sotomayor is unprincipled or dismissive of positions with which she disagrees. The three pieces of evidence initially cited for that proposition will be (i) the disposition of the Ricci case (in which a panel on which Sotomayor sat affirmed the dismissal of white firefighters' claims in a very short and initially unpublished opinion), (ii) a panel appearance in which she acknowledged that appellate judges effectively make policy, and (iii) a speech in which she talked about the role of her gender and ethnicity in her decision making.
These reeds are too thin for that characterization to take hold. The public neither understands nor cares about the publication practices of the courts of appeals. It also is easily able to accept a judge's recognition of the lawmaking effects of her decisions and the influences of her background. There just isn't any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.
Finally, critics will characterize her as gruff and impersonable, relying on excerpts from oral arguments and anonymous criticisms in the Almanac of the Federal Judiciary. Judge Sotomayor's personal remarks will resolve this question for the public, to the extent it cares at all. But there isn't any reason to believe that she is anything other than a tough questioner. My impression from her questioning at oral arguments is that it is similar to the Chief Justice, Justice Scalia, and (in cases in which he was particularly engaged) Justice Souter.
All in all, Judge Sotomayor's easy confirmation seems assured.
(A version of this is cross-posted on SCOTUSblog.)
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog.
*CORRECTION: The article originally stated that Sotomayor is a "first generation American, born of immigrant parents." Her parents are in fact from the U.S. territory of Puerto Rico.
By Tom Goldstein