06/02/2009 04:04 pm ET | Updated May 25, 2011

The Two Faces Of Opposition

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ali Frick, Ryan Powers, and Ian Millhiser

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For the first time since being nominated, Judge Sonia Sotomayor will visit Capitol Hill today, where she will be meeting with both Republican and Democratic Senate leaders. Although President Obama wants to see hearings on Sotomayor's confirmation conclude before the senators depart for their August recess, the GOP leadership is resisting. Conceding that "we do need to do it by October," Sen. Jeff Sessions (R-AL), Ranking Member of the Judiciary Committee, claimed that Republicans need more time to read each of Sotomayor's opinions in order to prepare for the hearing. But Senate Judiciary Committee Chair Patrick Leahy (D-VT) -- explaining that Sotomayor has already suffered "some of the most vicious attacks," including allegations of "bigotry" and "racism" -- said that he "intend[s] to give her an opportunity as soon as possible to answer" them.

DIVIDING THE NATION BY RACE: Echoing similar statements by right-wing radio hosts and former congressmen, right-wing pundit Pat Buchanan called on conservatives to "stand up for the white working class" by opposing Sotomayor. Buchanan claimed that Sotomayor believes "white males...can be discriminated against if it's for the good goal of advancing people of color." He bases this claim in part on Ricci v. DeStefano, a case in which Sotomayor voted to uphold the city of New Haven's decision not to certify the results of a firefighter's promotion test after virtually all of the minorities who took the test scored too low to be eligible for promotion. But Sotomayor was simply upholding the law. Federal civil rights law "requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional." If anything, the Ricci case shows Sotomayor's willingness to adhere to the law even when the result of her decision is unpopular. Moreover, Sotomayor's court held in the 1984 case of Bushey v. New York State Civil Service Commission that employers are allowed to "voluntarily compl[y]" with civil rights law by reconsidering tests that have an adverse impact on minorities. Bushey has never been overruled, so Sotomayor was required to follow it. To do otherwise would mean ignoring the law in order to benefit a sympathetic plaintiff -- exactly the kind of "judicial activism" Buchanan likes to accuse progressive judges of engaging in. His racial attacks are further discredited by a study of Sotomayor's race discrimination cases, which found that she "rejected discrimination-related claims by a margin of roughly 8 to 1." Moreover, Sotomayor dissented from a decision holding that a police officer could be fired for engaging in racist hate speech while off duty. Sotomayor believed that even racial slurs are protected by the First Amendment.

'JUSTICE J-LO': For all their exaggerated claims that Sotomayor lacks racial sensitivity, conservatives continue to tar her with allegations that she owes her own nomination to the fact that she is a racial minority. Calling her "Sonia from the block" and "Justice J-Lo," right-wing pundit Debbie Schlussel claimed that Obama chose Sotomayor for the "sole reason" that "she shares the life story of J-Lo, Jennifer Lopez." Similarly, noting a report that Sotomayor used to bolster her English skills by reading children's books and basic grammar textbooks while she was in college, Buchanan mocked the 17-year veteran of the federal bench for doing something less than "college work." Right-wing blogger Michael Goldfarb echoed Buchanan's attempt to diminish Sotomayor's summa cum laude degree from Princeton by claiming she received "preferential treatment" when she organized one of 132 student-initiated seminars taught on Princeton's campus. Other conservatives have questioned Sotomayor's skills as a judge, claiming that she has a "high reversal rate" because the Supreme Court reversed three of the five Sotomayor decisions that they took on appeal. The truth, however, is that Sotomayor has written 380 opinions as a court of appeals judge, so her three reversals represent less than one percent of her total decisions. Moreover, because the Supreme Court is allowed to choose the cases it wishes to hear, it often hears cases that it intends to reverse -- 75 percent of cases heard by the Supreme Court result in reversals -- so Sotomayor actually performs better before the Supreme Court than most judges. Ironically, even as conservative pundits grasp at straws to question Sotomayor's intellectual fitness for the bench, University of Chicago Law Professor Eric Posner released a new study that found that Sotomayor is one of the most frequently cited judges on the federal bench. "If citations reflect quality," Posner concluded, "Sotomayor may well be one of the top appellate judges in the country."

A 'TWO SIDED STRATEGY': Despite the torrent of lies and invective spewed by right-wing pundits in the week since Sotomayor was nominated, conservative senators have steered clear of the overheated rhetoric favored by the Limbaughs and the G. Gordon Liddys of the world. Fully aware that "trashing" an outstanding Latina nominee to the Supreme Court could banish them to the political wilderness for years, Senate conservatives have, for the most part, shown a respectful face to Judge Sotomayor, repeatedly insisting that she will receive a "fair hearing" before the Judiciary Committee. Yet these same senators have also embraced a "two-sided strategy," silently encouraging right-wing activists and pundits "to do the political attacks" while allowing elected officials to "avoid potential backlash if they derail a historic nomination." Speaking to CNN on Sunday, McConnell claimed that he has "better things to do" than to denounce the racially charged attacks on Sotomayor, and Minority Whip Jon Kyl (R-AZ) told CBS that he was "not going to get involved" with discussions over whether Sotomayor is a racist. It still remains to be seen whether they will continue to pursue this two-sided strategy, however, once hearings begin, or whether Senate conservatives will cave to increasingly loud right-wing demands for obstructionism.