Let the Hearing Begin

The Senate Judiciary Committee will convene Monday morning at 10:00 a.m. to begin the hearing on Sonia Sotomayor's nomination to become an associate justice of the Supreme Court. The hearing will be a consequential moment in our history, but not so much because the confirmation of Judge Sotomayor is on the line. Barring some unforeseen and very unlikely event, Republicans will quickly back off attacks on Judge Sotomayor herself. They recognize that it is politically dangerous to criticize her given her appealing personal story of rising from a housing project in the Bronx to the pinnacle of our judiciary through enormous talent and hard work, her record as a moderate who feels bound to follow the law strictly on the bench, and her ethnicity and gender.

Instead, they will use the occasion to promote their distorted view of the law -- not what it is but what they would like it to be in a republic ruled by hard-right judicial activists such as Chief John Roberts and Justice Samuel Alito. For that reason, the week will offer an enormously important contrast between the nominee and her supporters and this ominous Republican vision.

So, what are the themes that Republicans will raise in response to Judge Sotomayor's nomination?

First, they will highlight the Ricci case, the challenge by white firefighters to New Haven's voluntary effort to avoid discrimination against minority firefighters. Judge Sotomayor, of course, sat on a panel of the Second Circuit that summarily affirmed the lower court's decision that New Haven's decision to scrap a test for promotion of firefighters to avoid disproportionately excluding black and Hispanic applicants was consistent with Title VII of the Civil Rights Act of 1964. Repudiating decades of settled civil rights law, the Supreme Court reversed that decision in a 5-4 opinion. The five conservatives on the Court, who have traditionally been hostile to claims of discrimination by minorities, created a new rule and broke with standard practice by directing judgment for the white firefighters, rather than sending the case back to the lower court so that New Haven could prove that it met the new standard. While Republicans will criticize Sotomayor's participation in the panel decision and will bring in the lead plaintiff, Frank Ricci, to testify (surely they would not suggest that empathy for Ricci should influence the result), the fact remains that 11 of 21 judges who reviewed Mr. Ricci's claim ruled against him. Judge Sotomayor can hardly be considered out of the mainstream or at fault for failing to apply the law that the conservatives made up when the case reached the Supreme Court.

Republicans will also use the hearing to promote guns. In their continuing quest to ensure that every American is armed, they will criticize a decision in which Judge Sotomayor, sitting on a unanimous panel of the Second Circuit, held that the Second Amendment to the Constitution, which ensures against federal limitations on an individual right to bear arms, does not prohibit state limitations on guns. Unfortunately for Republicans, the Supreme Court has held the very same thing three times. To find fault with Judge Sotomayor's decision, her critics have to argue that she should have thrown the rule of law to the winds and ignored Supreme Court precedent. Even conservative icons of the bench, Judges Frank Easterbrook and Richard Posner, have agreed with Judge Sotomayor on this issue. That, however, is unlikely to stop conservatives from using the occasion to lecture about the sanctity of the Second Amendment as a guarantee of fundamental rights.

Republicans will also raise questions about abortion -- even though Judge Sotomayor has never ruled on abortion and does not have any known public statements on the issue. In any event, support for Roe v. Wade, which is the law of the land, can hardly be a ground for disqualification from the Supreme Court. There will be no traction in criticizing Judge Sotomayor on this issue, but Republicans are likely to use the opportunity to burnish their anti-choice credentials, as if anyone had any doubt.

Republicans will criticize Judge Sotomayor for two decisions involving takings of private property by local governments. Again, both decisions are based directly on Supreme Court precedent -- namely the Court's controversial but binding decision in Kelo v. City of New London. Because Kelo has proven unpopular, however, Republicans will try to tie Judge Sotomayor to it in a critical manner, even though it remains the law of the land, which she, as a judge, is required to apply.

Republicans will also use Judge Sotomayor as a foil to fulminate against importing international law as the basis for deciding domestic legal issues. Judge Sotomayor has been very clear that she does not believe that the law of other nations or international law offer a basis for decision in the courts of the United States. Indeed, there is nothing in any of her opinions that suggests otherwise. Republicans, therefore, will attempt to misconstrue a speech she gave in which she allowed that good ideas may arise outside the United States and we should be receptive to them. That is a far cry from endorsing international sources of law as binding in the United States.

Finally, Republicans will attack the activities of the Puerto Rican Legal Defense Fund (PRLDEF), which Judge Sotomayor served as a member of its Board of Directors prior to going on the bench. PRLDEF is an outstanding organization that has done exceptional work in promoting civil and constitutional rights. It operates in the great tradition of the NAACP Legal Defense Fund and other public interest legal organizations that have helped America to fulfill its promise as the cradle of liberty and opportunity. Republicans should be ashamed of trying to score political points off of Judge Sotomayor's commitment to the proud tradition of public interest law.

In sum, next week will do more than allow Americans to learn more about Judge Sonia Sotomayor, it will also present an opportunity to examine the legal agenda of the hard-right. In contrast to the sterling nominee who will sit in front of the Senate Judiciary Committee as the embodiment of the opportunities that America, because of its values and laws, provides to those who work hard, the ultraconservative legal agenda will appear small, ungenerous, mean-spirited, and exclusive.

Let the hearing begin.

Follow Nan Aron on Twitter: www.twitter.com/NanAron

Comments

[dunwoody01]

Most people do not seem to be able to think for themselves. Personally, I'm sick of the name calling and bickering back and forth. I propose we fire every one of the politicians and vote out every single incumbent, perhaps then we could get on with the business of the people. As for the upcoming appointment of a Supreme Court justice, I don’t care what they look like, or what their politics are, I just want them to follow the rule of the law, instead of judicially legislating.

Don't you wonder about people that blindly follow, instead of developing their own logical opinion? I know I do.

[middleoftheroad]

Nan, how has the Roberts court been hard-right judicial activist like? Also, How could Obama vote AGAINST a candidate like Roberts...(Alito as well) when The President should have their choice and elections do mean things. Were YOU calling for moderate reason in the hearings for Roberts or Alito? Did you back the Dems who called Alito a racist? The left likes to have it both ways. And, IS Sotomayor a great judge? I mean really, is she...and I dont really care about her life story, I care about her as a judge. Do you think she is honestly THE BEST, or was this a triangulation political pick?????

[springsm]

Well if the PResident got who and what he wanted each time, we would end up with the same full superior court that looked a great deal like Bush's cabinet. And maybe you should research why Obama voted against Roberts. Obama is just as capable and quite knowledgable on the Constitution. He also has lived. Roberts and Alito both were raised within a very protective and protected enviornment and they are both Federalists...that is enough to have voted no. Were any of them great judges to your knowledge. The correct and honest answer is either "no" or "I don't know". Take Clarence Thomas for instance. Ya take him. Your righteous indignation is just that. Do you know how Roberts votes on everything? I thought not.

[mikenolib]

The Constitution is based on Federalism. All justices should be Federalists. Obama is a mental midget compared to John Roberts. Obama has lived? He has had the skids greased for him every step of the way. Where is this "superior court" you describe in the first sentence? Obama voted against Roberts because Roberts was nominated by a Republican president. Period. Get a clue.

[JillQ]

Of course. The hearings will tell us more about the Republican­s/conserva­tives than about Judge Sotomayor. She will, no doubt, handle them and their offensive questioning with class and aplomb. I will be watching the hearings with great interest.

[springsm]

I can hardly wait. None of them are smart enough to have intelligent deep questions and most of them are so into getting the daily briefing on what to ask and how to insult that they are not researching with much expertise. That is the way it seems anyway from the babble they produce out of their mouths.