Why the GOP failed the Sotomayor test
By: Byron York
Chief Political Correspondent
July 17, 2009
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| President Obama's Supreme Court nominee, Sonia Sotomayor, concludes her testimony before the Senate Judiciary Committee on the fourth day of her confirmation hearing, on Capitol Hill in Washington, Thursday, July 16, 2009. (J. Scott Applewhite/AP) |
For Republicans, the confirmation hearings for Supreme Court nominee Sonia Sotomayor were a missed opportunity. Not an opportunity to defeat her — with 60 Senate Democrats determined to confirm President Barack Obama’s first Supreme Court choice, Sotomayor will undoubtedly prevail. But Republicans had a chance to delve deeply into Sotomayor’s record, to reveal the worldview and background of the next Supreme Court justice, and they didn’t take advantage of it.
Part of that was because of Sotomayor herself. She carefully followed her coaching, answered slowly, avoided questions by putting them “in context” and refused to budge from scripted responses on hot-button issues.
But much of the blame lies with Republicans, who proved unable to exploit the striking differences between what Sotomayor has said and what she has done over the course of her career.
Sotomayor’s 17-year record as a federal judge was unexceptional. “The cases you’ve been involved in, to me, are left-of-center, but not anything that jumps out at me,” Republican Sen. Lindsey Graham told her. With the exception of one egregious case, her siding against white Connecticut firefighters who had been discriminated against in job promotion, Republicans found little to work with in her record on the bench.
But at the same time Sotomayor hewed to unremarkable left-of-center judging, she gave a series of public speeches in which she adopted the language of legal activism and radicalism. She embraced the idea that her Latina identity influences her decision making on the bench and even determines what facts she chooses to acknowledge or ignore. She endorsed legal relativism. And she made that now-infamous “wise Latina” speech.
Sotomayor also acted on her beliefs when she served on the board of the Puerto Rican Legal Defense and Education Fund, or PRLDEF. There, she oversaw lawsuits on a variety of leftist causes: racial and ethnic set-asides, a broad expansion of abortion rights and opposition to the death penalty. In her work at PRLDEF, Sotomayor put into action the ideas she expressed in her speeches.
So there was the Sotomayor of the bench, and the Sotomayor of the pulpit and PRLDEF. And then, to top it off, there was the Sotomayor of the confirmation hearings, when she described herself as a conservative, law-bound judge. When asked her legal philosophy, she replied simply, “Fidelity to the law,” and repeatedly disavowed any role of judges in making law. (She did that even though she had been caught on tape at a 2005 appearance at Duke University plainly stating just the opposite.)
Who was the real Sonia Sotomayor? What worried Republicans was the possibility that, if she reaches the Supreme Court, the Sotomayor of PRLDEF and “wise Latina” and the firefighters’ case will be freed from all restraints.
“We don’t know what kind of judge she would be like, if she’s on the Supreme Court and not subject to any appellate review of her decisions,” said Republican Sen. John Cornyn during a break in the hearings. “If she’s going to be like the Judge Sotomayor of her speeches, that’s a problem, I think, for the American people.”
To make matters worse, Sotomayor was sometimes unresponsive, and even slippery, in her under-oath testimony. She disavowed virtually all knowledge of the PRLDEF lawsuits, even though Republicans had minutes from old board meetings showing that Sotomayor, as head of the litigation committee, “review[ed] and recommend[ed] a litigation program.” She said she didn’t really mean what her “wise Latina” speech clearly said. And she claimed always to stick closely to the facts and the law, even when she had advocated otherwise.
Sometimes, she descended into non sequitur. On her final day of testimony, Graham asked, “Do you believe that your speeches, properly read, embrace identity politics?”
“I don’t describe it as identity politics,” Sotomayor responded, “because it’s not that I’m advocating the groups do something illegal.”
What in the world did that mean? Graham didn’t follow up.
Nor did Republicans follow up on dozens of other questionable statements. And that was the GOP’s failing. To uncover the real Sotomayor, the activist as well as the judge, required asking short, persistent, fact-based questions. Instead, several Republican senators speechified, lingered on the “wise Latina” issue, and failed to explore in depth her work at PRLDEF. They let her evasions stand.
And in the end, they gave up. As elected officials, the GOP senators didn’t see the value in a scorched-earth fight they were going to lose anyway. And now Sonia Sotomayor — whoever she is — heads to the Supreme Court.
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