06/27/2009 05:12 am ET Updated May 25, 2011

The Real Story Behind How Supreme Court Justices Are Chosen; Gingirch Leading Fight Shows WH Winning On Sotomayor

The first Supreme Court confirmation hearings I covered as a journalist were the Clarence Thomas proceedings. There, as a young field producer for C-SPAN, I found myself in the middle of history in real time. This was back in the days when cellphones had to be carried in a big padded bag. We were the pool for the hearings, and I was a wide-eyed journalist, soaking it in.

As mesmerizing as it was to be in the room when Anita Hill and Justice Thomas took the stand were the antics going on outside the courtroom. Senator John Danforth of Missouri, a critical supporter of Judge Thomas, went from standup location to standup location with a group of women who had worked at the Equal Opportunity Employment Commission holding press conferences for anyone who would watch saying they had worked under Thomas and he had not harassed them.

Vice President Joseph Biden was then the Chairman of the Senate Judiciary Committee and oversaw the process. He clearly liked that limelight, happily banging the gavel when someone's time was up.

Organizations including the NAACP, the Urban League and the National Organization for Women opposed Clarence Thomas, and lobbied the Committee and press.

Senator Orrin Hatch played an unforgettable role as he changed from the persona we in DC knew and became a prosecutor, wincing as he brought up charges that Anita Hill's papers contained pubic hair. This came after a weekend during which I later learned Republican staffers and lawyers worked through the night on affidavits and investigation to find that smoking gun.

But it was Thomas himself who stopped the game of Russian roulette that was unfolding. In his defense, he called the hearings a "high-tech lynching," and I felt in my gut the hearings were over.

Watching Senators retreat to the ante room after each witness, I wondered where and how the real decisions got made on Supreme Court nominees. When the Committee came back to issue its vote, a 7-7 split, it was clear that many discussions of import occurred outside the hearing room. The final full-Senate vote was 52-48, with 41 Republicans for Thomas and two against, and 46 Democrats and two Republicans against him. Thomas was nominated to replace the first African American on the bench, Justice Thurgood Marshall.

Those same discussions, evidentiary searches for smoking guns, and political temperature taking are going on now on both sides of the aisle, and within each wing of each party. So far, based on what's been found, there may be a few empty bullet cases, but no silver bullets. Without a smoking gun, there isn't a vested interested for either side in blocking her. The right will put up a fight to keep the base happy, but to really derail Judge Sotomayor, they will need something even bigger than Anita Hill was for Clarence Thomas.

There will be arguments, due dilligence, and grilling, but absent a smoking gun, it is mainly just for show. Republicans do not have the votes now that allowed them to confirm President Bush (41)'s nominee.

Curt Levey of the Committee for Justice, says she was chosen because she is Hispanic and a woman. He says she is not an intellectual heavyweight and does not have a judicial temperament. "That is not to say she is not a smart woman", says Curt Levey. So what does it say?

His argument, unlike the slipped republican talking point memo, is based on 2001 speech by Sotomayer, at a University of California-Berkeley symposium marking the 40th anniversary of the first Latino named to the federal district court.

"Our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement," Sotomayor said. "First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

In a country that overwhelmingly elected it's first African American President less than six months ago, it is hard to fathom that this will be the smoking gun. If it were, Republicans who hold office and face re-election would be cryig foul, not Gingrich.