When Judge Sonia Sotomayor sits with her broken leg propped up on a table and faces the Senate Judiciary Committee for most of this week, much of the nation will be enthralled by a highly choreographed fight with an almost certain outcome. The “wise Latina woman” will eventually be the first Hispanic Supreme Court Justice, and the third woman to ever sit on the high court. But just because judicial confirmation hearings are faker than professional wrestling that doesn’t mean you shouldn’t be paying attention.
The partisan game taking place may not be what it portends – one branch of our government honestly scrutinizing a nominee of another branch before she gets a lifetime appointment to the third – but the way the players behave will demonstrate the progress of minorities in our society, convey the state of both political parties and allow citizens their only chance to examine a woman who will have one-ninth of the final say on the most pressing issues of our time.
Sotomayor should be well-prepared. She spent the past week in training, being grilled by White House lawyers who have done this sort of thing before. The strategy of a nominee, they say, is to play defense. The senators should be doing two-thirds of the talking.
After senators grandstand on topics that can later be turned into helpful fundraising sound bytes – judicial temperament, abortion, guns and affirmative action for Republicans, financial regulation, abortion and executive power for Democrats – Sotomayor will respond by saying very little. The catch-all response for every successful nominee in the past 20 years has been to punt on questions that can come before the court while exhibiting enough knowledge of the topic as to appear worthy to sit on the court.
Sure, she will know which previous decisions were good (school desegregation) and which were bad (those saying black people could be property and the Japanese could be sent to internment camps). She will know that somewhere in the Constitution there is a right to privacy, but she won’t tell you what that has to do with abortion, thank you very much.
Republicans will turn to their battle-tested tactic of portraying a Democratic nominee as an “activist” judge. President Obama didn’t help out any with all of his empathy talk, saying he wanted a jurist who would take into consideration the effects laws have on real people. Democrats and the witnesses who will testify on her behalf will say that her 17 years of experience show she is well within the mainstream of federal judges.
Her record shows she tilts to the right in criminal cases, and she has never issued an opinion on abortion rights.
That has some Democrats and abortion rights groups nervous. Senators who are friendly to Sotomayor may spend more time than her skeptics talking about abortion. Republicans think they have a better chance to bruise the Latina with a leg in a cast with questions about racial preferences and affirmative action. And they have a witness, too, a firefighter from New Haven named Frank Ricci who lost a shot at a promotion when black and Latino firefighters sued because few minorities passed a promotions test.
Sotomayor was part of a three-judge panel that upheld a verdict in favor of the minority firefighters. Coincidentally, she also once worked for the Puerto Rican Legal Defense and Education Fund (now awkwardly known as LatinoJustice PRLDEF) and was chair of its litigation committee when the group sued New York City because Hispanic sanitation workers performed poorly on promotions exams.
Now Republicans will say Obama’s calls for empathy, plus Sotomayor’s remarks in a commencement speech that a “wise Latina woman” could come to a better decision than a white man because of her experiences, equal a trend of racial favoritism. It’s a risky narrative to push in 2009. How far they take it will show how far they think the nation has moved from the need for affirmative action just after electing its first black president.
Given that Sotomayor’s most overplayed statements on race occurred outside of a court, she will have to explain them. One can only hope she will explain a bit more, not only because it will make this week more interesting but also because after it is over she will help decide every major question facing the country until she decides to retire. The people should know what they are getting.
And beginning Monday at 1 p.m. Pacific time, you should be paying attention so you might have a better idea, too. Because despite how rehearsed, theatrical or predetermined the hearings may be, if you don’t stay informed, you risk getting lost in the fray down the road, when discussion of and rulings on pressing issues actually mean something.
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Daily Emerald
July 11, 2009
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