OFF ON THE RIGHT FOOT…. I can appreciate the importance of getting a political push started effectively, especially when it comes to taking on a Supreme Court nominee. If a jurist is seen from the outset as qualified, intelligent, experienced, and part of the ideological mainstream, it’s extremely difficult to change those perceptions after they’ve taken root.
It’s why, nearly 24 hours after learning of Judge Sonia Sotomayor’s nomination, conservative activists have reason to feel discouraged. They put together a strategy, but the right seems to have come up with little more than some out-of-context quotes. In a Senate with a 59-seat Democratic majority, this won’t do.
We’ve heard a lot about Sotomayor saying that appeals courts are “where policy is made,” but this is easily debunked as a controversy. The right was also excited yesterday about this 2001 quote: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” But, again, there’s even less here than meets the eye.
The right wants us to believe Sotomayor has been reversed repeatedly by the Supreme Court, but this doesn’t stand up well to scrutiny. Some conservatives think the judge is “soft” on “corruption,” but this is easily dismissed nonsense.
Dahlia Lithwick recommends the right approach this from an entirely different angle.
Instead of wading into a bruising identity politics war they cannot possibly win, conservatives — even the angriest conservatives — should wade into Sotomayor’s vast legal writings. There are hundreds of cases for them to read and parse and quote out of context. Let’s have this confirmation battle on the merits, rather than in the sinkhole of unfounded character attacks. The real problem for Sotomayor’s opponents is that anyone who has closely read her opinions won’t find much to build a case on. As the indefatigable team at SCOTUSblog has chronicled here and here, on the appeals court, Judge Sotomayor has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justice David Souter than to the late Justice William Brennan on the judicial activism spectrum.
She has been overturned three times at the Supreme Court, and may well be again soon. But she was also a state prosecutor, a corporate lawyer, and a Bush I appointee to the federal bench. As the White House points out in its talking points today, “In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time.”
What evidence does anyone anywhere have that Sotomayor has spent her career departing from the letter of the law to impose her personal preferences? Her participation in the (poorly handled) decision in the New Haven firefighters case was anything but judicial activism, much as it will be spun as symbolic of her lifelong hatred of white men. On a conference call with reporters today, a senior administration official noted that in the New Haven case, Judge Sotomayor did nothing more than apply the case law: “You can’t say she’s a judicial activist and then criticize her for applying 2nd Circuit precedent.” Her judicial record reveals a lot more humility than hubris.
So, attacking isolated quotes, wrenched from context, is a losing gambit. Combing through Sotomayor’s rulings won’t get the right very far. Attacking her personally is political suicide.
What does that leave the right with? Not much, but that probably won’t stop a whole lot of conservatives from throwing a whole lot of tantrums.
