How will the Sotomayor nomination play out?

From Judge Sotomayor’s point of view the answer to this question seems apparent — in all likelihood she will be confirmed. The interesting questions center around how Republicans will conduct themselves, and how they should.

In addressing the prescriptive question, I take the following propositions as axiomatic:

First, Republicans are free to follow existing standards for considering Supreme Court nominees — i.e., those set by the Democrats during the Roberts and Alito confirmation processes. I exclude from this rule only matters of demeanor; Republicans should act with far more courtesy and respect towards Sotomayor than the Dems did towards President Bush’s nominees. But when it comes to “discovery,” substantive questioning, voting up or down, and deciding whether to filibuster, Republicans are free to follow existing standard. Indeed, the presumption should be in favor of doing so, since it clearly will not do to have different standards depending on which party nominates a potential Justice.

Second, Repubilcans should not raise the bar. During the Roberts and Alito proceedings, the Democrats raised the bar considerably as compared to where it had been set for Ginsburg and Breyer. But Republicans should not follow suit. The higher the bar, the more likely the Senate will confirm only wishy-washy centrists or stealth nominees. The Supreme Court would suffer as a result.

It’s premature fully to apply these rules to Judge Sotomayor other than to say that she should be subjected to a high degree of scrutiny — including production of potentially relevant documents and extensive questioning — as Roberts and Alito were.

From what we already know, however, I submit that Republican Senators should feel free to vote against Sotomayor. Half of the Senate Democrats voted against Roberts and a strong majority voted against Alito. They did this for no other reason than their desire not to have another “conservative” on the Supreme Court. There is substantial evidence that Sotomayor is a “liberal.” Thus, non-liberal Senators have every right to vote against her for that reason.

Some Republican Senators may be reluctant to do so given her ethnicity and the power of the Hispanic vote. Depending on how the confirmation process goes and what state a given Senator represent, voting “yes” may be a sensible option. There is no imperative that Senators jeopardize their political future by voting against Sotomayor if the cause is lost.

The existing practice on filibusters is ambiguous. However, the “Gang of 14” approach — that filibusters should occur only under “extraordinary circumstances” — probably can pass for a rough description of the current state of play.

So far, I’m aware of no extraordinary circumstance that would justify a filibuster against Sotomayor. Her attempt to “fly under the radar screen” while upholding racial discrimination against non-black firefighters was deplorable, but probably not sufficiently so.

Sotomayor’s suggestion that, other things being equal, Latina judges can decide cases better than their white male counterparts hints at a special circumstance, since it entails a view of judging that arguably is antithetical to existing norms. Sotomayor should be examined carefully on this question. If she does not walk away from her prior statement, then (coupled with her positions on race-based preferences) the Republicans may have (a) a basis for asserting the existence of an extraordinary circumstance and (b) a tenable political basis for obstructing this nominee.

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