| 1. Sotomayor will tell her life story in such a way that everyone will be in tears.
2. Sotomayor will show herself to be very bright. Pity the foolish GOP Senator who tries to cross-examine her.
3. Sotomayor will explain her vote in Ricci v. DeStefano as upholding the local government's actions, leading to a discussion of "judicial activism" as meaning "overturning governmental action," allowing her to deny that she is a judicial activist.
4. After that initial defense, she will be asked, "Do you agree with the Supreme Court?" "Would you have been with the majority or the minority on this one?" "Would you vote to reverse that decision, the next time that a reverse discrimination case comes up?" She will cite the portions of the opinion with which she agrees, but she will argue that the Supreme Court did not give enough deference to the decision of the New Haven government to figure out the best way to solve the problem of discrimination. This gives the Republicans a problem, because one of the standard arguments about judicial activism is that judicial activist judges don't give enough respect to other government decision makers. So Sotomayor will be able to defend her vote using the Republicans' own logic and rhetoric against them, without having to directly explain where she comes out on reverse discrimination as a potential claim. The Republicans will press her for a ruling on some hypothetical case -- the next case coming along -- and she will refuse to answer on the ground that it would be inappropriate for her to prejudge the next case.
5. Notwithstanding that defense, the Republicans will try to figure out some way to argue that her vote in Ricci shows that she is anti-white. The Republicans will have little else to talk about, so they will talk about that.
6. The ranking Republican on the Judiciary Committee is Jeff Sessions, who was himself denied a seat on the bench back in the 1980's over concerns about his racial biases. He has already been trying out the "racially biased" theme, but he is the wrong messenger given his history. Any attack from Sessions will just sound like sour grapes, and Sotomayor is much smarter and more articulate than Sessions.
7. Republicans really don't like "empathy" as a judicial characteristic, but the polls show that the American people as a whole want empathy from the bench. But Mitch McConnell is really hung up on "empathy"; he said that Sotomayor's vote in Ricci last year against white firefighters alleging reverse discrimination showed that she was converting "empathy" into "favoritism for particular groups."
8. McConnell is going to argue that Sotomayor might have let her work with the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF, sway her decision. McConnell and Sessions will try to make the PRLDEF into this year's ACORN. But again, Sessions will have to tread lightly; one of the reasons that he lost his judgeship was the flap that ensued after he called the NAACP "un-American," so he really can't do much with that issue. And the NAACP has already made it clear that they intend to watch for racist crap from Sessions: "We would caution him to tone down his rhetoric," said Benjamin Jealous, the president of the NAACP. "It reminds people of comments that he's made in the past, it reminds people of days when this country was much more pessimistic about race relations ... and it reminds people of a day when the Republican Party made itself the home for politicians with extreme racial sentiments."
9. She will talk about her "wise Latina" comment, then she will be asked about it by Democrats in such a way that she gets to say that the quote was taken out of context, that if you read the whole sentence, blah, blah, blah. Some Democrat will ask her, "Judge Sotomayor, when then-Judge Samuel Alito was here in front of us three years ago, he said that his experience growing up in an Italian family in South Jersey gave him some valuable life experiences that have informed his judicial decision-making in a useful way. Do you agree with now-Justice Alito that it is appropriate for Supreme Court Justices to draw on their life experiences in making their decisions?" And she will, not surprisingly, answer, "Yes."
10. The Republicans will ask her about her view on some hot button issues -- the Second Amendment, abortion, etc. -- but she will dodge the questions. The general rule is that nominees will refuse to talk about substantive law whenever possible; the only exception is when the nominee has already written or spoken about the issue, so there is a particular statement that can be defended or attacked. Aside from racial issues -- the "wise Latina" comment in particular -- talk about issues when they have written or spoken on them, but they will refuse to So with little else to do, Republicans will use their time to denounce her as a judicial activist, as racially biased, as out of the mainstream, and then ask her a fairly benign question because they want the face time on national TV but they don't have the guts to confront her directly.
11. At some point, Republicans will whine that they haven't received enough information on the nominee. Then Pat Leahy will haul out the two-foot-thick stack of documents that Sotomayor and the White House have provided. (If you want to see the list, and view the documents, go here and read them for yourself.)
12. Some of the Republican Judiciary members who might be expected to oppose a nominee are from states with high Hispanic populations -- like Jon Kyl of Arizona or John Cornyn of Texas. The only pretty sure bet to vote against her is Tom Coburn of Oklahoma, a non-lawyer and arch-conservative. My guess is that the other Republicans will cave and vote for her.
At this point, the schedule for the hearings next week has not been set, except that the first session will begin at 10:00 AM on Monday. You can get the Webcast here |
