Download PDF

Sonia Sotomayor was the one in the witness chair, but Republicans faced more of a struggle in trying to sway the public's verdict on their own party.

Republicans on the Senate Judiciary Committee knew going into the hearings on Sonia Sotomayor's nomination to the Supreme Court that they had a weak hand. Given their party's 60-40 disadvantage in the Senate, her confirmation has never been in much doubt—unless she had a "complete meltdown," as Sen. Lindsey Graham, R-S.C., acknowledged on the first day of the hearings. So, with the final outcome near-certain, the seven Republicans on the panel this week chose to emphasize the high stakes at issue in considering Supreme Court nominees, took potshots at President Obama for suggesting that judges must have "empathy" in grappling with difficult cases, and tried to reinforce public doubts, reflected in some polls, about what the GOP portrays as Sotomayor's out-of-the-mainstream views.

Even before the nominee was sworn in to testify on July 13, committee Republicans pledged to be respectful but, at the same time, to pull no punches. The obvious political reality is that they had to thread the needle by aggressively questioning Sotomayor to mollify their conservative base, while avoiding looking like bullies and further damaging their party's deteriorating position with Hispanics, the fastest- growing demographic group among voters. "At the end of the day, Supreme Court nominations are what ring the bell for social conservatives," said Scott Reed, a Republican strategist who managed Bob Dole's 1996 presidential campaign. "Supreme Court nominations are for life; they are vitally important." Reed emphasized Sotomayor's controversial ruling, as part of an Appeals Court panel, that the city of New Haven, Conn., should be allowed to throw out a test used to evaluate firefighters for promotion after no African-Americans scored high enough to move up. "That firefighters' issue is big," he said. "That hits every lunch-pail guy and woman in this country. It breaks the commonsense rule—doesn't make common sense."

But Bill Greener, another veteran GOP strategist, worried before the hearings that if Republicans were perceived as attacking Sotomayor—the first Latina nominated to the Supreme Court—the party would face an even deeper hole among Hispanics, who voted 2-1 for Obama in last year's presidential race. "If the

Republican Party achieves a level of weakness among Hispanics the equivalent to what exists among black voters," Greener said, "I just don't see how the numbers add up" to win a national election. As for the Republicans' approach to Sotomayor, he added, "even the word ‘aggressive' makes me nervous. I don't think you have to be aggressive."

By midweek, Greener applauded the Judiciary Committee Republicans for their "very respectful and somewhat circumspect" approach and their willingness "to put on the table serious items, but to make certain it's done in a way that's respectful." Clearly, R-E-S-P-E-C-T was a well-circulated GOP talking point this week.

When asked about his tough questioning of Sotomayor on gun owners' rights and on the firefighters case, Sen. Orrin Hatch, R-Utah, a former Judiciary chairman, dismissed the notion that nominees should be handled differently based on their ethnicity. "It shouldn't make a difference what a person's ethnic background is," he said in an interview. "That person needs to be aggressively questioned. My understanding is that Hispanic people are just as concerned about having a good justice there as anybody else. As long as this good judge is treated with deference and respect, I don't think there is any reason to think politically about it." Sen. John Cornyn, R-Texas, whose home state is one-third Hispanic and who, as chairman of the National Republican Senatorial Committee, is especially sensitive to the political landscape for next year's elections, likewise downplayed any negative fallout for the GOP. "Hispanics do not engage in groupthink," Cornyn said in an interview. "What I think they expect—and what I have said this nominee deserves, and really what every nominee deserves, is to be treated with respect.… I am not too concerned about alienating Hispanics."

Sen. Jeff Sessions, R-Ala., the committee's new ranking member, made clear his strong conservative sentiments, albeit in an understated tone. Asked in an interview about the hearing's stakes, he replied, "This is sort of a battle for the American legal system." Then he took at jab at Obama—who has spoken of judges' need to bring their "deepest values" and "core concerns" to their rulings, rather than the strict dictates of the law—by noting, "I don't believe in this postmodern junk."

Sessions aggressively quizzed Sotomayor about her often-repeated comment, "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion." He wondered whether those and other statements from her speeches betray a bias that she would bring to the Court.

But Sotomayor wore a poker face throughout the hearings and was seemingly unruffled by this and other tough questions. She deflected repeated inquiries about that statement by pointing to her rulings during 17 years on the federal bench that she said reflect judgments based on legal precedents, not biases or personal experiences.

Republicans hoped to use the hearings to send a signal to the White House that it was inappropriate for Obama, when he was in the Senate, to oppose John Roberts's and Samuel Alito's Supreme Court nominations on the grounds that their experience failed his test of "the depth and breadth of one's empathy." Obama set out that standard on the Senate floor in 2005 in explaining his negative vote on Roberts. Even Sotomayor acknowledged that she disagreed with Obama's standard—an important point to some committee Republicans.

When asked if she might look to "empathy" to decide cases, Sotomayor quickly rejected the notion. "We apply law to facts. We don't apply feelings to facts," she said. She explicitly disagreed with Obama's notion that "what's in the judge's heart" should affect rulings. "I wouldn't approach the issue of judging in the way the president does," Sotomayor said.

For Sen. Jon Kyl, R-Ariz., that concession was clearly important, not only for this hearing but also for future potential judicial nomination battles with Obama. "I thought that was rather remarkable that she did disagree with President Obama's formulation of the proper standard for deciding cases," he told a knot of reporters after his first round of questioning.

Kyl also provoked Sotomayor to say that her "wise Latina woman" comment was a "rhetorical flourish; it was a bad idea." But he wasn't buying her effort "to walk away" from her earlier comments, he said, and he told reporters that she "continued… [to] mischaracterize the main point of her speech," which was, in his view, "to make the case that women and judges of ethnicity would make different decisions than other judges."

Republicans were carefully monitoring public opinion barometers surrounding the much-anticipated hearings. Before they began, Rasmussen Reports found that only 38 percent of respondents favored Sotomayor's nomination and 44 percent opposed it. But after the first day of the hearings, she had narrowed that gap to 42 percent in favor and 44 percent opposed.

In what is surely a preview of a GOP campaign theme for next year, Cornyn said: "People care a lot about the courts. It is sort of a proxy for a lot of things that they feel a little anxious about—whether it is a redefinition of marriage, or values issues, family-related issues. As they see courts becoming more and more aggressive in redefining our country and our values, they are understandably concerned.… Those are decisions that ought to be reserved to the people. If we want to see changes in our society, they should not be made by unelected judges, but rather by the elected representatives of the people."

Still, the political battle is relatively tame because Sotomayor is replacing David Souter, one of the Court's more liberal members. "In a way, [her confirmation] probably is not going to change the balance of power a whole lot," Graham said in an interview. If she were instead nominated to replace one of the high court's conservatives, he added, "the politics would certainly be different."

Ultimately, Republicans had varying views about what would constitute a win for their party coming out of Sotomayor's likely confirmation. A win would be "respectful opposition without alienating key voting blocks," said Sam Geduldig, a GOP lobbyist at Clark Lytle & Geduldig. "A loss would be irresponsible opposition in which the Left gets a memorable sound bite, like ‘hightech lynching,' " he added, referring to the phrase that Supreme Court nominee Clarence Thomas hurled at Democrats in 1991 amid allegations that he had engaged in sexual harassment.

For his part, Reed contended, "If she gets confirmed with 65 votes, that's a loss for Obama. If he couldn't pick off half the Republicans, he loses. He came in to change the way Washington works and to be bipartisan."

But Larry Sabato, a University of Virginia political science professor, said that Republicans have no shot at a win at all. "It is a loser—totally, across the board," he said. "That's why they are very lucky this is happening in the summer and that it is going to be over quickly."

Sabato noted that the GOP base won't be pleased unless the Senate rejects Sotomayor. "They are in a permanently disgruntled mood these days," he observed. "And the Republicans can't possibly win with the rest of the public, because she is going to become one of these iconic figures. They will be remembered, if they are remembered at all on this, for having opposed her."

When asked what he would see as a success, Sessions replied, "[If] people say you did your job. This nominee had problems and had weaknesses in her background, and you raised them, honestly, and worked hard and tried to make sure the hearing did what it is supposed to do."

« Back