Commentary Magazine


Sotomayor’s Confirmation “Not A Done Deal”

The confirmation hearing for Sonia Sotomayor begins on Monday. Where do we stand? Senate Judiciary Minority Leader Jeff Sessions says her confirmation is “not a done deal” and lists his concerns:

Sessions pointed to statements that Sotomayor made in 2001 — and repeated subsequently — in which she said that personal experiences affect how judges view the facts, as well as iterations of her oft-cited comment where she said that a “wise Latina woman” could sometimes reach better conclusions than white men. The senator also criticized her decision to join a ruling as an appeals court judge saying that the Second Amendment did not apply to states under long-standing precedent; her position in a New England firefighters’ case on race-based employment; her association with a Puerto Rican legal group; and what he said was her role as a “leading advocate” of the citation of foreign law in reaching decisions.   “For the most part, the statements she has made that give insight into her judicial philosophy were statements she volunteered,” Sessions said. “It’s those words that would cause difficulty in the confirmation process, not a knee-jerk political opposition. There are serious matters that need to be dealt with and questions that need to be answered. … I think her speeches and writings go further than originally expected and are more troubling than I expected.”

While Republicans are short on votes they have a plethora of issues, many of which resonate with the public at large. And indeed recent polling shows that voters aren’t that enamored of the “wise Latina” Supreme Court nominee. They approve of her confirmation by a modest 47-40% margin. (Recall that prior to his hearings, John Roberts had favorable poll numbers in the 60% range.) She’s actually closest to Robert Bork and Harriet Miers in polling.

That doesn’t mean her nomination is in peril, but it should remind Republicans (and the stray Democrat or two inclined not to rubber-stamp whomever Obama sends up to the Court) that there is no great political peril in doing their job thoroughly and without apology. She is up for a lifetime appointment. She has, after all, voiced views on judging and race that no other nominee has ever identified with. Can she put her admitted biases aside? Does she take seriously a judge’s responsibility of avoiding outcome-based decision-making and give both sides full and fair consideration?

That is what the hearing is designed to illuminate. And her performance will ultimately need to convince a majority of the Senate (perhaps a filibuster-proof majority) of her legal skill, impartiality, adherence to the rule of law, and respect for the structure of our constitutional system. At the very least, it will be enlightening as her defenders and critics explain their own views on racial preferences and judicial impartiality. The votersc can then see for themselves which side’s view come closest to their own. I suspect they will discover those elected to the majority in the Senate, as well as the president who nominated Sotomayor, are not in fact embracing anything remotely resembling a post-racial, let alone a colorblind, society.