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.
A few days after the President nominated Sonia Sotomayor, I labeled the question of her confirmation “over.” Along the same lines, I wanted to lay out why I think the hearings themselves will be a complete non-event.
Republicans have nothing significant to gain by making the hearing a media event, so they won’t. For her part, Judge Sotomayor is likely to adhere to the modern tradition of saying as little as necessary. The result is a conspiracy of convenience in which not much is likely to happen.
Start with the inevitable outcome. Absent a bombshell development, she is going to be confirmed. Democrats are about to have a 60-vote Senate majority. Moderate Republican Senators--e.g., Collins and Snow--will make up for any (unlikely) Democratic defection.
Nor is there any prospect of an effort to mount a filibuster. Opponents haven’t developed a narrative justifying that step.
The vote in the judiciary committee won’t be close either. Democrats have a dramatic 12-7 advantage in membership.
There are political disadvantages to drawing attention to the hearings. To the extent it has considered the question, the non-ideologically committed public--effectively, independents--seemingly likes her and thinks she should be confirmed.
Judge Sotomayor is of course the first Latina nominee to the Court. This is a historic moment for Hispanics. The third appointment of a woman is also significant, though less profound. Those are important electoral groups.
Beyond demographics, Judge Sotomayor has a compelling life story. She not only came from a poor upbringing, but she continues to live very modestly after a career of almost exclusive public service.
She is objectively qualified. She graduated at the top of her class at Princeton and did well at Yale. She was a prosecutor, private practitioner, trial judge, and appellate judge.
However positive the impression is now, it’s only going to gravitate further in that direction under what will presumably be a well-orchestrated White House roll out of her, the family, colleagues, and experts.
Publicly attacking Judge Sotomayor in the general population puts a Senator on the wrong side of public opinion.
Given that there is no real prospect of derailing Judge Sotomayor confirmation, and the prospect of causing self-inflicted wounds by attacking her, I expect that conservative Senators will lower their profile. They will note their opposition and state their principles, but limit their strong advocacy (that otherwise could come across publicly as badgering) to the already committed conservative community.
Contrast that with the array of “speakers” who have everything to gain with aggressive advocacy in support of Judge Sotomayor. The Judge herself will speak, and by all accounts will present herself very well. The Administration, liberal advocacy groups, supporting senators, and other varied supporters are all fully engaged.
They have a significant audience, with much to gain beyond the votes of undecided Senators in this inevitable confirmation. This will be a celebratory event for Hispanics, who will associate it with the President. Women will appreciate the Court’s greater diversity.
More broadly, the confirmation hearings are an opportunity for the Administration--if it can seize the offensive--to use a popular nominee to further define the President. Though the general public does not care much about the Court, the perception of a nominee in a high-profile nomination process does translate to some extent onto the President that made the appointment. If she is regarded as a radical liberal, for example, that will say a good deal about the President who picked her.
Don’t overread my conclusions. I don’t expect that conservative Republicans will roll over and vote to confirm Judge Sotomayor. They won’t. They genuinely believe or suspect that she is too liberal and that she has inappropriate views on legal questions, including basic issues such as how to interpret the Constitution.
Rather, my point is that we should not anticipate that Republican Senators will put on a very public display of opposition, with heated and detailed questions and public statements. Conservatives are already convinced that Judge Sotomayor shouldn’t be confirmed. Senators concerned about that community will speak to it directly.
So I expect that Republicans will make generalized points about her supposed ideology and views on the role of judging (e.g., the comment in the Duke panel about appellate judges making policy), then make four more particular points (in no particular order) without trying to engage Judge Sotomayor. As they will put it . . . .
First, they were denied sufficient time to prepare, given the massive amount of material relating to her record. This is a facially valid, seemingly neutral reason for opposing her.
Second, her property rights ruling in Didden v. Village of Port Chester is troubling. In the wake of the Supreme Court’s decision in the Kelo case, property rights questions have resonated broadly with the public, and the facts underlying the claim that Judge Sotomayor rejected in Didden can be described in sympathetic terms.
Third, her membership in the Belizean Grove was inappropriate under the judicial ethics rules. Again, a neutral objection.
Fourth, her decision in Ricci was wrong, in both substance and procedure (i.e., the Second Circuit’s summary disposition of the case). Here too, the claims of the plaintiff firefighters can be described sympathetically.
I don’t expect the question of guns to play a significant role, beyond simply being mentioned. Judge Sotomayor sat on a panel concluding that the question of the Second Amendment’s incorporation was previously settled by the Supreme Court, a result consistent with a Seventh Circuit panel that included Judges Posner and Easterbrook. That’s a simple answer to the allegation that she is opposed to gun rights, and--beyond the committed gun rights community--this is an issue will get discussed simplistically.
I also don’t think that the original hype regarding race in Judge Sotomayor’s decisionmaking will take center stage. That seems to have run its course. The “wise Latina” remark stands pretty much alone. Her record on race cases is objectively balanced. And aggressively pressing questions of race with a Latina nominee on national television is dangerous to the point of explosive.
With few attacks and no credible threat that Judge Sotomayor will be confirmed by less than a wide margin, press and public interest in the hearings is likely to be muted. For the first time in memory, NPR will not cover the hearings live, with stations preferring to run their expanded local programming. PBS will cover the days in which the Judge Sotomayor testifies, but is undecided about later days with panels of witnesses.
In general, by the evening of Wednesday July 15, I expect that coverage in the mainstream media will have fallen off a steep cliff.
By Tom Goldstein