It has been a couple of weeks since President Obama nominated Sonia Sotomayor to replace Justice David Souter on the United States Supreme Court. Since the President’s announcement, conservatives have been divided in their reaction to the nomination. The Republican conservative base, including many in the conservative media and even some Congressmen, have urged a fight and want to see the Republican Senators even threaten a filibuster of the nomination. However, Republican Senators themselves have been guarded in their approach and, at least in public statements, seem to be willing to allow Judge Sotomayor to have her say at the upcoming confirmation hearings before they decide how to vote. For both ideological and practical reasons, count me in the latter group.
First off, for ideological reasons I firmly believe that it is the Senate’s job to confirm qualified jurists to the federal bench. In other words, it is not the Senate’s job to step in and make an ideological determination about whether the candidate is one that will rule the way they want on various cases. I began feeling this way in the 1980’s when Supreme Court nominations began to turn into the elaborate process they are today. It used to be that the Senate only did look at the qualifications of the candidate and did not even hold public hearings where the nominee was questioned on a whole host of issues.
Everything changed in 1987 with the nomination of Robert Bork. Democrats and liberals began attacking Judge Bork because of his record and eventually the Senate voted against his nomination to the High Court. None of the reasoning provided by those who voted against him had to do with his qualifications, instead it was entirely on his judicial philosophy and ideology. In fact, if you looked at Judge Bork’s qualifications, he was one of the most qualified nominees ever to the Supreme Court. At that time, I advocated the responsibility of the Senate should not be getting into the ideology of a nominee, but simply determine whether the candidate was qualified or not. For me to now oppose a nominee solely on ideology would be hypocritical.
So how do Sonia Sotomayor’s qualifications add up? She certainly has a resume that suggests she is qualified. She was nominated to the US District Court by the first President Bush and then nominated to the US Court of Appeals by President Clinton. She has been serving on the appellate court for eleven years. I am interested to see how she “performs” under the intense questioning of the Senate Judiciary Committee. The Supreme Court deals with some of the most complex legal issues in the land and we need individuals on the High Court of the highest intellectual ability to grapple with these issues. While I do not think that the Senators should consider ideology, I believe that the hearings are helpful in the process. They provide for an opportunity to judge the intellectual prowess and judgment of the nominee. In a sense, they act as a public job interview for the position. For this reason, I will continue to reserve judgment.
However, there are also some practical reasons why I believe that the Republican Senators should be wary of a big nomination fight. First of all, it is a fight that they cannot win. For the Republicans to successfully filibuster, they will need all 40 Republican Senators to vote in favor of the filibuster, something which is very unlikely when you consider that there are still a couple moderate Republican Senators. However, even if all current Republican Senators vote in favor of a filibuster, then the Democrats can still get the required 60 votes to break the filibuster if they manage to get Al Franken seated in the still contested Minnesota election. At this point, short of a new revelation about her or a very poor performance at the Judiciary Committee Hearings, it appears as though Judge Sotomayor will become the next Associate Justice to the Supreme Court and to fight it simply to make a point seems fruitless.
The second practicality that I think suggests that the Republicans should avoid an ugly confirmation battle is the effect such a fight would have on their voting interests within the Hispanic community. It has been well reported that Sonia Sotomayor is the first person of Hispanic heritage to be nominated to the Supreme Court and I think the Republicans would be foolish to attack her and potentially alienate another minority voting block. Over the years, Republicans have struggled to win any support in a national election among the African-American community, and that was before Barack Obama ran for president. With many Republicans taking a tough stand on immigration issues, the support for Republicans among Hispanics has been eroding as well. In my next post, I think I will go into more detail about the shifting electorate among Hispanic Americans and what that means for the future of American politics, but suffice it to say, the Republicans cannot afford to have huge margins in the two most significant minority voting blocks in the country.
Finally, in the essay I wrote in preparation for the 2008 election, I pointed out the fact that any justices appointed by President Obama will not change the current make up of the Supreme Court. That is the case with this nomination. Retiring is a liberal member of the court in Justice David Souter and it appears as though Judge Sotomayor is probably similar in ideology. So even if Judge Sotomayor is confirmed and has a reliable liberal voting record, there will still be four conservatives, four liberals and a moderate-to-conservative in Justice Kennedy. I’ll take my chances with that breakdown.
We shall see how the Sotomayor confirmation plays out and I will continue to post my thoughts, but for now, I think the Republicans in the Senate would be best served sitting back and allowing the confirmation to play out and react only if something comes out that would call her qualifications into question.
First off, for ideological reasons I firmly believe that it is the Senate’s job to confirm qualified jurists to the federal bench. In other words, it is not the Senate’s job to step in and make an ideological determination about whether the candidate is one that will rule the way they want on various cases. I began feeling this way in the 1980’s when Supreme Court nominations began to turn into the elaborate process they are today. It used to be that the Senate only did look at the qualifications of the candidate and did not even hold public hearings where the nominee was questioned on a whole host of issues.
Everything changed in 1987 with the nomination of Robert Bork. Democrats and liberals began attacking Judge Bork because of his record and eventually the Senate voted against his nomination to the High Court. None of the reasoning provided by those who voted against him had to do with his qualifications, instead it was entirely on his judicial philosophy and ideology. In fact, if you looked at Judge Bork’s qualifications, he was one of the most qualified nominees ever to the Supreme Court. At that time, I advocated the responsibility of the Senate should not be getting into the ideology of a nominee, but simply determine whether the candidate was qualified or not. For me to now oppose a nominee solely on ideology would be hypocritical.
So how do Sonia Sotomayor’s qualifications add up? She certainly has a resume that suggests she is qualified. She was nominated to the US District Court by the first President Bush and then nominated to the US Court of Appeals by President Clinton. She has been serving on the appellate court for eleven years. I am interested to see how she “performs” under the intense questioning of the Senate Judiciary Committee. The Supreme Court deals with some of the most complex legal issues in the land and we need individuals on the High Court of the highest intellectual ability to grapple with these issues. While I do not think that the Senators should consider ideology, I believe that the hearings are helpful in the process. They provide for an opportunity to judge the intellectual prowess and judgment of the nominee. In a sense, they act as a public job interview for the position. For this reason, I will continue to reserve judgment.
However, there are also some practical reasons why I believe that the Republican Senators should be wary of a big nomination fight. First of all, it is a fight that they cannot win. For the Republicans to successfully filibuster, they will need all 40 Republican Senators to vote in favor of the filibuster, something which is very unlikely when you consider that there are still a couple moderate Republican Senators. However, even if all current Republican Senators vote in favor of a filibuster, then the Democrats can still get the required 60 votes to break the filibuster if they manage to get Al Franken seated in the still contested Minnesota election. At this point, short of a new revelation about her or a very poor performance at the Judiciary Committee Hearings, it appears as though Judge Sotomayor will become the next Associate Justice to the Supreme Court and to fight it simply to make a point seems fruitless.
The second practicality that I think suggests that the Republicans should avoid an ugly confirmation battle is the effect such a fight would have on their voting interests within the Hispanic community. It has been well reported that Sonia Sotomayor is the first person of Hispanic heritage to be nominated to the Supreme Court and I think the Republicans would be foolish to attack her and potentially alienate another minority voting block. Over the years, Republicans have struggled to win any support in a national election among the African-American community, and that was before Barack Obama ran for president. With many Republicans taking a tough stand on immigration issues, the support for Republicans among Hispanics has been eroding as well. In my next post, I think I will go into more detail about the shifting electorate among Hispanic Americans and what that means for the future of American politics, but suffice it to say, the Republicans cannot afford to have huge margins in the two most significant minority voting blocks in the country.
Finally, in the essay I wrote in preparation for the 2008 election, I pointed out the fact that any justices appointed by President Obama will not change the current make up of the Supreme Court. That is the case with this nomination. Retiring is a liberal member of the court in Justice David Souter and it appears as though Judge Sotomayor is probably similar in ideology. So even if Judge Sotomayor is confirmed and has a reliable liberal voting record, there will still be four conservatives, four liberals and a moderate-to-conservative in Justice Kennedy. I’ll take my chances with that breakdown.
We shall see how the Sotomayor confirmation plays out and I will continue to post my thoughts, but for now, I think the Republicans in the Senate would be best served sitting back and allowing the confirmation to play out and react only if something comes out that would call her qualifications into question.
