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Republicans Walk Fine Line Questioning Sotomayor

By Dan Balz
Tuesday, July 14, 2009

Sonia Sotomayor's confirmation hearings opened yesterday against the backdrop of demographic changes that continue to alter the nation's politics. What drama exists this week is less the question of whether she will be confirmed than what the first Latina Supreme Court justice might contribute to those changing politics.

Though the adage that the justices follow the election returns may still apply, grubby politics are not supposed to intrude on the dignified proceedings of the Supreme Court. But any barrier-shattering nomination brings with it broader political implications of which Democrats and Republicans are keenly aware.

President Obama's advisers said months ago that he hoped to find a replacement for Justice David H. Souter who could both make history and lower the temperature of what have become judicial confirmations filled with partisan fireworks. Judging from opening day, he appeared to have accomplished both goals. Every expectation is that the hearings will be civil and, as Sen. Lindsey O. Graham (R-S.C.) put it, unless she melts down starting today, she will be confirmed.

That hardly diminishes what is at stake as members of the Senate Judiciary Committee turn to questioning Sotomayor. Republicans have the greater burden this week. They must tread carefully, balancing their desire to use the hearings to frame a debate over legal philosophies that their constituents want to see with their concern that they do nothing to show insensitivity or disrespect toward the fastest-growing minority group in the country.

Judicial conflicts of the past have been used to energize political bases in both parties. Conservative Republicans around the country are itching for a robust show of strength and an articulation of principles by their leaders in Washington, and they got that yesterday, beginning with Sen. Jeff Sessions (Ala.), the new ranking Republican on the Judiciary Committee.

Sessions used his opening statement to pointedly express his reservations about Sotomayor's fitness for the high court. His doubts, shared by others in his party, include his concern over her assertion that a "wise Latina woman" would reach a better legal judgment than a white man, and disagreements over her views on affirmative action as shown in the New Haven, Conn., firefighters' case in which she and her peers on the U.S. Court of Appeals for the 2nd Circuit were recently overturned by the high court.

Sessions framed the conservative case against Sotomayor and his GOP colleagues filled out the bill of particulars they will pursue this week. They object not only to some things Sotomayor has said, but to Obama's assertion that one of the attributes he wants in a Supreme Court justice is empathy. Does that, they asked, inevitably lead to a biased rendering of the law that unfairly favors one group over another?

Republican Sens. Orrin G. Hatch (Utah) and Jon Kyl (Ariz.) raised that issue yesterday morning. How can a justice make sure he or she sets aside personal experiences and sympathies when interpreting the Constitution? Kyl wondered what will happen when Sotomayor ascends to the high court and is free from the restraints on any appeals court judge. He was blunt in questioning whether she would be an evenhanded interpreter of the law.

All of these are legitimate areas of inquiry for the Republicans. Sotomayor has been well prepped for these questions. In her opening statement, she offered a partial answer. "In the past month, many senators have asked me about my judicial philosophy," she said. "Simple: fidelity to the law. The task of a judge is not to make law. It is to apply the law."

Even before she spoke, her Democratic advocates on the Judiciary Committee began to make the case that, as Sen. Charles E. Schumer (N.Y.) put it, by any fair reading of her record she is a mainstream jurist who takes an evenhanded approach to the law. Still, the size of Sotomayor's expected margin in the Senate depends on how well she performs when she comes under more detailed questioning.

In quizzing Sotomayor, Republicans almost certainly will face questions about whether their hearing-room strategy does damage to their efforts to reverse the erosion in support they have experienced among Hispanics in the last two elections.

Simon Rosenberg, president of the Democratic-leaning think tank NDN, said in an e-mail message yesterday that his party has been far more deft at capitalizing on the nation's changing demographics. He put the Sotomayor nomination in that context, another example, he said, of the party's recognition that the United States will soon be a majority-minority nation.

"If during the next few weeks the Republicans appear to be playing politics with race rather than raising legitimate issues about Sotomayor's judicial approach, it could reinforce the deep impression that the Republican Party's anachronistic and intolerant approach to race and diversity is making them less capable of leading a very different and more racially diverse America of the early 21st century," he wrote.

Republicans contend that it was the Democrats who played politics with a well-qualified Hispanic judicial nominee when they blocked the nomination of Honduran-born Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit during President George W. Bush's administration. Democrats paid no political price for their action. Estrada's nomination to the appellate court was seen as a first step toward a possible nomination to the Supreme Court. Graham invoked that episode yesterday in laying out the case that his differences with Sotomayor were based on philosophy, not ethnicity.

Political strategist Matthew Dowd said yesterday that these hearings ultimately will have little impact politically. He said other recent confirmation battles did little to presage the strength or weakness of the party in power in late elections, nor has the breaking of a barrier translated directly into additional political support.

"I don't think there's an upside for the Democrats or the Republicans in this," he said. "It's neutral at best for each of them politically."

Greg Mueller, a conservative strategist, argued that individual Democrats may face a more difficult vote than most Republicans. Sotomayor's philosophy is to the left of the country at large on issues of racial preferences and guns, among other issues, and Democrats from red states who support her may be seen as out of step back home.

But Mueller and Republican David McIntosh explained the GOP strategy for the week. Republicans must "keep the hearings focused on her record and her comments, not about her race," Mueller said. McIntosh put it this way: "The biggest risk for Republicans is if they are perceived to abandon the principle of judicial restraint."

With the outcome almost a foregone conclusion, there may be more for Republicans to lose than for Democrats to gain this week. Facing a demographic shift of significant proportions that threatens to keep them in minority status well into the future, their challenge will be to remain true to their principles while demonstrating that they are mindful that their party must adapt to a changing country.

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