As Sotomayor Confirmation Looms, Conservatives Count Victories

July 28, 2009 | Last updated: July 31, 2020

Sonia Sotomayor during her confirmation hearings (WDCpix) Sonia Sotomayor during her confirmation hearings (WDCpix)

As the Senate Judiciary Committee readies for Tuesday’s vote on Supreme Court nominee Judge Sonia Sotomayor, conservative judicial activists are taking stock of the battle that demanded so much of their energy for more than two months. They don’t expect to make her the first high court nominee to go down to defeat since 1987 — a scenario that had always seemed unlikely. They do expect a majority of Republicans to oppose her, and that’s more than they had expected when the nomination was announced.

“The Republican senators did much better than I expected,” said Manny Miranda, the chairman of the Third Branch Conference, a judicial conservative umbrella group that opposed Sotomayor’s nomination largely behind the scenes.

Image by: Matt Mahurin Image by: Matt Mahurin

In early June, Miranda had been bearish on the Republican conference, doubtful that it would put up a fight. He called Senate Minority Leader Mitch McConnell “limp-wristed” and organized 145 conservative activists to campaign for a filibuster of Sotomayor, which they’re not going to get. Sen. John Cornyn (R-Texas), in announcing his opposition to the nominee, admitted that her confirmation was probably inevitable. Yet they feel like the debate over Sotomayor was as much as a conservative success as it could have possibly been, and they see a chance to give the nominee the lowest level of support from the opposition party since the bruising 1991 fight over Clarence Thomas.

“When we started, I didn’t expect more than 16 ‘no’ votes,” said Miranda. “Now I think we may go as high as 29 votes. We’ve achieved quite a lot.”

With a final vote on Sotomayor likely before the Senate leaves for its August recess, the wins and losses of the confirmation battle are becoming clearer to activists. After a few bumps in May, the attack on Sotomayor as a judicial activist who had trouble seeing past race was bolstered by a focus on her often-repeated remarks about how a “wise Latina” judge might rule in discrimination cases. An early focus on whether Sotomayor would have “empathy” for defendants cowed her, activists argue, into backing away from any hint of that. And activists credit the successful push to get the National Rifle Association to “score” the confirmation vote, forcing senators to oppose Sotomayor if they want to maintain high ratings from the group, while marshaling several senators against her.

“The NRA’s decision to score the vote is a huge statement,” said Curt Levey, director of the Committee for Justice. “They were hesitant to get involved. Even if Sotomayor is eventually confirmed, the fact that the NRA came to realize the importance of Supreme Court nominations in protecting gun rights is a very big deal. The grassroots have been activated.”

It was no sure thing that the nation’s most powerful gun rights group would oppose Sotomayor. Activists familiar with the campaign to bring it on board said that they started early, theorizing that they might need the group’s intervention to keep enough senators wavering on a vote to delay it past the recess. They argued that in the post-Heller era, Sotomayor–who wrote in 2004 that “the right to possess a gun is clearly not a fundamental right”–posed a real threat to the Second Amendment. One activist speculated that both Utah senators had been brought around to vote “no” because of the NRA’s move; Sen. Orrin Hatch (R-Utah) has not previously opposed a high court nominee, and Sen. Robert Bennett (R-Utah) is facing a stiff primary challenge. Losing the NRA’s support could hurt Bennett with Republican voters. Levey and other activists are making the case to “red state” Democrats that defying the NRA this year will put their seats at risk.

The unprecedented move by the NRA has drawn some fire from supporters of President Obama’s nominee. On Monday, four Hispanic Democratic members of the House of Representatives wrote an open letter to the NRA attacking the group for “evaluating Judge Sotomayor by a different standard” than previous Supreme Court nominees. But conservative critics of Sotomayor look back on the hearings and the months-long debate on the nomination and see little evidence that they did damage to their image with Hispanic voters.

“[Republicans] didn’t do to Sotomayor what Democrats did to Miguel Estrada,” said Mario H. Lopez, the president of the Hispanic Leadership Fund, referring to President George W. Bush’s Washington, D.C. Circuit Court nominee who withdrew after multiple filibusters, who was cited as a sort of martyr by Republican senators during Sotomayor’s hearing. “I don’t recall anything but a respectful and serious tone of questions from these hearings.”

Conservatives spoke derisively to TWI about the early tone of the Sotomayor battle, especially Sen. Chuck Schumer (D-N.Y.)’s assertion that “Republicans will oppose [Sotomayor] at their peril because of “her life story on the court.” Polling suggested that Hispanics generally supported the judge — one McClatchy poll found that Hispanics, by a 24-point margin, would have preferred that Republicans backed Sotomayor — but activists claimed that the nominee didn’t inspire Hispanics the way that backers like Schumer had insisted she would.

“The backlash against Republicans for opposing her never materialized,” said Miranda, who sparked a mini-controversy in June for suggesting that Hispanics wouldn’t unanimously back the nominee because they, unlike black voters, “think like everybody else.” Sotomayor, suggested Miranda, cut a more “sophisticated” and distant pose than Estrada. “He touched a cord with the community. We [supporters of Estrada] conducted polling on this. Eighty-six percent of Hispanics believed that Miguel deserved an up-or-down vote, and 87 percent supported him.”

Republicans and activists considered Sotomayor’s rejection of a “living Constitution” or an empathy standard during her confirmation hearings a clear victory, although one that will be harder to hold Democats to. Several activists pointed to Sotomayor’s rejection of one of Obama’s concepts of justice, that a judge’s heart can take him or her “the last mile” in judging the case, as a key moment that will be used to assess and frame future nominees. “Conservatives can take heart that they really do stand with the American people,” said Mario Lopez. “That was a reflection of how fair out of the mainstream Democrats are on judicial philosophy.”

But that was largely how the people who worked to grind down Sotomayor’s nomination viewed their success. They won’t stop her. They have discovered what may and may not be able to stop a future nominee.

“The goal isn’t to defeat Sotomayor,” explained Levey. “It’s to send enough of a warning shot that future nominees won’t be as hostile to the Constitution.”

The Committee for Justice, for example, developed five ads formatted for television and newspapers, one of which compared Sotomayor’s work for the Puerto Rican Defense Fund to President Obama’s friendship with reformed Weather Underground member Bill Ayers. It got plenty of attention; people clicked through to the committee’s site, and some donated. But TV viewers won’t see that particular attack on their screens. “I don’t think the ad was effective,” Levey admitted. “We’ll run some ads in the final week, but I don’t think we’ll run that ad.”