Premortem on Justice Sotomayor

Senate Judiciary will begin hearings on the nomination of Judge Sonia Sotomayor today. No fireworks expected, though; the senators and the nominee will just be giving their opening statements. The questioning of Judge Sotomayor starts tomorrow. The Chairman goes first, followed by the ranking Republican, and then alternating down the line until we get to the clowns on the Democratic side, Arlen Specter and Al Franken. Later in the week, witnesses will testify, including two of the successful plaintiffs in the Supreme Court's most recent race case, Ricci v. DeStefano.

Each day, Judge Sotomayor will telegenically hobble in on her broken ankle and say as little of substance as possible. When it's their turn, the Democrats will throw softball questions and give her plenty of opportunity to discuss her roots in the Bronx. On the other side, the Republicans will try and confront her without messing up their reelection efforts by providing soundbites of harsh treatment to an injured woman. Don't underestimate how terrified the Republicans on Senate Judiciary are of looking bad on TV in front of women and Hispanic voters.

Despite the wealth of disqualifying information on Judge Sotomayor, the hearings are a mere formality, which is why I call her "Justice Sotomayor" in the headline. The Republicans are just plain bad at this kind of thing. At first their strategy, led by Senator John Cornyn while ranking Republican Jeff Sessions lies low after Democrats resurrected the age-old accusations of "racially insensitive comments" which scuttled his chance at a judgeship in 1986, was to roll over and put up only token resistance.

Even before her nomination, the Right side of the blogosphere had video of Sotomayor's claim that "the courts are where policy is made." After bloggers uncovered Sotomayor's decades-long history of race- and gender-biased statements, Cornyn perked up a little bit, but then decided he couldn't win any votes in one-third-Hispanic Texas by going after her for them.

The Republicans on Senate Judiciary have shown more interest in standing up to the President as more details have been uncovered, including Sotomayor's membership in a woman-only club in violation of the ABA Code of Judicial Conduct and her and fellow judges' conspiracy to bury an important civil rights case that threatened to undo her policy preference for racial quotas. Then it was discovered that she was adviser to a Puerto Rican advocacy group that labeled Judge Bork a threat to Puerto Ricans during his ultimately unsuccessful confirmation hearings. She was also associated with ACORN.

Well, now Judge Sotomayor has the Republicans' complete attention. The only problem is they lost their chance. If they wanted to derail this nomination--or even merely give the President a black eye if their ambitions were so low--they had to start in the first few weeks. If it wasn't done then, it wasn't going to happen. But they wavered and fretted and wrung their hands and and tried to distance themselves from people actually interested in stopping this nomination and it's too late now. It appears they expect the decision to be made based on events at the hearings, something so stupid I'm going to emphasize that it only appears this way. This is theater. Unless Sotomayor has a meltdown this week, this thing is done and the senators on the Judiciary Committee know it.

It's frustrating because Democrats would never have wasted such an opportunity. When I write that Sotomayor's extensive history of race- and gender-bias should disqualify her for a seat on the Supreme Court that's not hyperbole. I mean it. She should not be a judge because she believes that some individuals are better than others by virtue of membership in certain identity groups. She should not be a judge because she tried to hide a case involving important constitutional and statutory questions from her fellow appellate judges. Such a small-minded and intellectually dishonest person should not be elevated to the highest Court. If only the Republicans on Senate Judiciary agreed.

posted by Gabriel Malor at 08:20 AM

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