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Sotomayor Creates Dilemma for Hill Republicans

Image has not been found. URL: /wp-content/uploads/2009/05/sotomayor-sessions.jpgSonia Sotomayor and Sen. Jeff Sessions (R-Ala.) (Zuma, WDCpix)

In May of 2005, Sen. Jeff Sessions (R-Ala.) took to the floor of the upper chamber and decried the possibility that Democrats would use the filibuster to prevent some of President George W. Bush’s judicial picks from ever taking the federal bench.

“When has 60 votes been the cut? The vote, historically, since the founding of this Republic, is a majority vote,” Sessions said. “[The Republicans’] record was one that rejected filibusters … The Constitution is clear that a majority is what we were looking for.”


Illustration by: Matt Mahurin

Precisely four years later, the Democrats control the Senate; President Barack Obama has nominated a controversial figure, Sonia Sotomayor, to replace outgoing Supreme Court Justice David Souter; Sessions is the senior Republican on the Senate Judiciary Committee that’s charged with examining Sotomayor’s record; and GOP leaders have a tough political calculation to make: Do they buck their own condemnation of judicial filibusters to fight Sotomayor hammer-and-tongs in order to energize their conservative base, or put on the kid gloves so as not to alienate female and Hispanic voters — an increasingly vital demographic — in the run up to next year’s congressional elections?

The answer to that question could have sweeping policy implications far outside the nomination process, many experts say. Not only are GOP leaders trying to prevent more losses in the 2010 election cycle, but they’d also like to stall Sotomayor’s approval long enough to prevent Obama from moving his major policy priorities through Congress this year, while he retains the political capital to do so. Democrats are racing to pass comprehensive health reform and global warming bills this year — extremely contentious proposals that supporters fear wouldn’t stand a chance in the 2010 election year.

“It’s in [Republicans'] interest to delay,” said Lawrence Butler, political scientist at Rowan University and author of “Claiming the Mantle: How Presidential Nominations Are Won and Lost Before the Votes Are Cast.” “A Senate that’s consumed by a Supreme Court nominee isn’t working on health care or climate change.”

Outside of Capitol Hill, the response from conservatives to Obama’s choice has been both swift and unambiguous. “Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written,” said Wendy Long, counsel to the right-wing Judicial Confirmation Network. Charmaine Yoest, president and CEO of Americans United for Life, said the pick “would provide a pedestal for an extremist ideologue judge to impose her personal policy and beliefs onto others from the bench.” And Bruce Hausknecht, judicial analyst at Focus on the Family Action, said Sotomayor “disregards the notion of judicial impartiality.”

Republican lawmakers are voicing similar concerns, but their milder tone indicates they intend to tread much more lightly into this debate than their conservative supporters off the Hill. Senate Minority Leader Mitch McConnell (R-Ky.) issued a statement Tuesday promising that Republicans “will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

But, McConnell added, Republicans will treat Sotomayor “fairly.”

Political experts say the reason for the GOP’s caution is simple fear of the potential political backlash of opposing an accomplished Ivy League graduate with a compelling biography and a decade’s experience on the federal bench. Some also maintain that that fear is justified.

“If they have a death wish for the Republican Party they could accomplish it by battling a qualified, Hispanic female nominee,” said Sheldon Goldman, political scientist at the University of Massachusetts, Amherst.

Unless some damning element of Sotomayor’s past — an ethical lapse, a failure to pay years of taxes — is uncovered during the examination process, Goldman said, Republicans have very little ammunition with which to go after Obama’s pick. “Senators play politics. And it’s hardball politics. And it never ceases,” he said. “They push, they push, they push — and they see what happens…But there’s an air of inevitability about [Sotomayor’s confirmation.]”

Democrats are hoping to approve Sotomayor by the second week of August, when Congress is scheduled to leave Washington for a month-long summer recess.

Several comments from Sotomayor have infuriated the right and sparked controversy about her willingness to approach the judgeship apolitically. In 2001, for example, she said she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Speaking before a panel in 2005, she said that a “court of appeals is where policy is made.”

Even before those incidents, the GOP had their concerns. In an interview with CNN Wednesday, Sessions, who voted against Sotomayor during her 1998 federal appeals court nomination, said his opposition at that time was based on “an unease maybe about her background and her tendency to activism.”

Sessions said some of Sotomayor’s comments represent “troubling things that are going to have to be inquired into.” Still, the Alabama Republican told a local reporter Tuesday that he’s not ready to play his hand just yet. “I’m not going to pre-judge how I’m going to vote,” he told WKRG News in Mobile.

There’s good reason for Republicans to be wary of an aggressive attack on Sotomayor. Hispanic voters are an increasingly important voting block in the United States, constituting 9 percent of voters nationwide in 2008 — up from 8 percent in 2004, according to the Pew Research Center. Of those voters, 67 percent supported Obama over his GOP opponent, Sen. John McCain (R-Ariz.), Pew found.

Faced with those numbers — and the continued popularity of Obama himself — even Republican strategists concede the difficulty of keeping Sotomayor off the Supreme Court. “It would be hard,” Fred Barnes, executive editor of The Weekly Standard, told Fox News Tuesday. “I don’t know if Republicans will mount much opposition at all.”

Still, there have been few controversial votes in the Senate in recent years that the Republicans haven’t filibustered, leaving the possibility that Democrats — currently 59 in number — will still require at least some GOP aisle-crossers to win Sotomayor’s approval.

In that case, in the eyes of some experts, the GOP’s earlier statements blasting judicial filibusters would be no barrier to attempting such a filibuster themselves.

“It might be shocking to learn,” said Goldman of UMass, “but occasionally you see hypocrisy among politicians.”

Aaron Wiener contributed research to this report.

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