Next week, I will have the privilege of live blogging the Sotomayor confirmation hearings for the Huffington Post. In doing so, I will try to explain to HuffPost's diverse community of bloggers and readers why these hearings matter, and how to determine whether progressives or conservatives are "winning" the battle of the hearings. Here, in the first of two introductory posts, I'll provide a brief overview of the big fights next week. A second post will flag what are likely to be the hearings' key moments.
One thing should be said right upfront: Absent a bombshell, Judge Sotomayor is almost certain to be sitting on the Supreme Court by early September. A number of factors -- including Sotomayor's overwhelming qualifications, her performance so far, the popularity of President Obama, and the makeup of the Senate -- pave a straight path for Judge Sotomayor's confirmation. But a closer look at past confirmation hearings reveals that beyond simply getting a nominee confirmed, two larger battles occur beneath the surface, both of which progressive and conservative legal experts alike will be closely watching. These are: (1) the debate over the public's lasting perception of the nominee, and (2) the debate over the future of the Supreme Court and the Constitution.
These debates are the ones to watch next week, not simply because progressives and conservatives harbor profoundly different views concerning the Court and the Constitution, but also because the outcome of these battles may determine how heavily President Obama invests in future Supreme Court nominations. Confirmation hearings for a new Justice are about the only time the American public tunes into these debates, and each side will attempt to seize the moment. Winning, in turn, can be judged in terms of how well each side does presenting its case about the nominee and in swaying public perceptions of the current Supreme Court, led by Chief Justice John Roberts.
Winning the Debate About Judge Sotomayor
In the debate over the lasting perception of Judge Sotomayor, it is useful to articulate each side's clear objectives. Judge Sotomayor's supporters will want the critical audiences listening to the hearings (Senators, Judge Sotomayor's future colleagues, the media and the American public) to view her as an overwhelmingly qualified pick with a great life story and a commitment to the rule of law. Her conservative opponents, by contrast, will want these same audiences to conclude that Judge Sotomayor is a dangerous pick with an inappropriate "temperament" and an activist bent, whose ultimate confirmation will be attributable solely to the fact that conservatives lack sufficient Senate seats to prevent it.
Similarly, each side possesses its own game plan for winning this debate. Inevitably, Judge Sotomayor will carry most of the load here in her own defense. Through her televised opening statement and responses to Senators' questions, she will create an image of herself that, for better or worse, will likely endure long after she joins the bench. She will attempt to meet the American ideal of a judge who is brilliant and fair, exceptionally qualified as well as personally likable.
Judge Sotomayor's detractors will attempt to undermine this image, and to throw her off guard with what will probably look like a kitchen sink strategy. Over the last two months, conservative legal activists have been picking through Judge Sotomayor's record and finding every quote that sounds bad when taken out of context and every ruling that can be spun to support a conservative talking point about liberal activist judges. Sotomayor will likely face accusations of being hostile to property rights and guns, of relying on "foreign law" and supporting quotas, of wanting to make "policy" from the bench and favoring some litigants over others. The conservatives' hope is that Judge Sotomayor will stumble, and that one of these accusations will start to stick, or generate an angry response from the Judge that can be used to question her judicial temperament. The risk is that these accusatory questions can backfire (think Martha-Ann Alito in tears) and turn public support dramatically in favor of the nominee.
We will learn the "winner" of this debate not necessarily through the final vote count for confirmation, but through media coverage in the days during and following her hearings. And the outcome of this battle is an important one for all sides. If she succeeds in convincing viewers she is the hyper-qualified, sensible and fair jurist her record suggests she is, Judge Sotomayor will be easily confirmed; she will arrive at the Court a force-to-be-reckoned-with, and President Obama will be emboldened in his future picks. On the other hand, if conservatives are successful in an effort to paint Judge Sotomayor as a "liberal judicial activist," this will provide leverage to conservatives in demanding that President Obama pick "moderate/consensus" nominees for future vacancies, and provide conservatives with an issue to run on in 2010 and beyond.
Winning the Debate About the Supreme Court
While the debate about Judge Sotomayor is very important, it is but a small skirmish in a much larger war between progressives and conservatives over the future of the Supreme Court and the meaning of our Constitution. At next week's hearing, both sides will be thinking bigger than simply Judge Sotomayor, seeking to move the public's image of the Supreme Court closer to their own. On this front, progressives have an opening they can't afford to squander.
Eleven of the last thirteen Justices confirmed to the Supreme Court were nominated by Republican Presidents, and Republican Presidents, starting with Richard Nixon, have run for election against the "liberal" Supreme Court. Little wonder, then, that the Supreme Court has emerged, most powerfully since the replacement of Justice Sandra Day O'Connor with Samuel Alito, as a potent vehicle for moving the country in a conservative direction by, for example, cutting back on federal laws that regulate campaign finance and guns, protect the environment, prohibit discrimination, and promote affirmative action. The dirty little secret of the Court's conservatives is that many of the central planks of the conservative legal agenda depend on just the sort of judicial activism that conservatives love to decry, a point effectively made in a recent and remarkable op-ed in the New York Times by Ramesh Ponnuru. Ponnuru, editor of the staunchly-conservative National Review, cogently explains that the conservative attack on federal civil rights laws cannot be justified by the text and history of our Constitution.
Despite this, conservatives still try to convince the public that the Supreme Court is dangerously liberal. As hopelessly dated as this narrative is, it still holds power with much of the electorate. The challenge for progressive Senators is to use the Sotomayor hearings to change the focus to the 21st Century and the conservative threat of the Roberts Court, and particularly the threat it poses to the authority of Congress. Judiciary Committee Chairman Patrick Leahy and the newly-Democratic Senator Arlen Specter have raised these issues in remarks and letters, but these voices need to become a chorus in order for this new narrative to begin to take hold.
Conservative Senators will want to focus the Sotomayor hearings on aspects of their court agenda that are generally popular with the public - namely their promotion of gun rights, their fierce defense of property rights, and their attack on affirmative action. That's why you'll hear more than you ever wanted to know about Judge Sotomayor's votes in cases such as Maloney (gun rights), Didden (property rights), and Ricci (race conscious employment actions). Progressive Senators will want to shift the focus to cases that illustrate how overwhelmingly popular laws, such as the Clean Water Act, the Americans with Disabilities Act, the Voting Rights Act and the Bipartisan Campaign Reform Act, are in significant peril in the Roberts Court. More important, progressive Senators need to start convincing the listening audience that in striking down, limiting and calling these laws into question, conservative Justices on the Court are departing from constitutional text and history and exceeding their judicial role.
It won't be easy for Chairman Leahy and his Democratic colleagues to make this the narrative of the Sotomayor hearings: the press will want to focus more on the judge and her Senate detractors. But Leahy has the Chairman's gavel and a big numerical advantage on the Committee and it is Congress' own turf that's being stepped on by the Roberts Court. There is no better time to raise these concerns than at the confirmation hearings for a new Supreme Court Justice. There is also no better way to establish the need for a Justice, like Sonia Sotomayor, who once stated that "the role of a judge is to follow the law, not to question its plain terms."
Senator Leahy and his colleagues on the Senate Judiciary Committee can help win both the debate over Judge Sotomayor and the broader battle over the future of the Supreme Court by turning the Sotomayor hearings into a referendum on the activism of the Roberts Court. The question is whether they can pull this off.