Sotomayor's Judgment Day

There is little question that Sonia Sotomayor will be confirmed. But it is important for the White House and Democrats to do it right and set the tone for an even bolder pick the next time.

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The Democrats would do well to spend some time talking about the difference between trial judges and appellate judges as the co-star of the hearings is likely to be Frank Ricci, the white firefighter who passed the promotion exam that the city of New Haven refused to certify because of their concern that use of the exam might violate Title VII of Civil Rights Act of 1964.

This is pure Hollywood drama, Republican style: white working-class Joe (or Frank in this case) vs. judge with a racial ax to grind. The fact that it’s contrived, unfair and inflammatory is beside the point. Judge Sotomayor affirmed the decision of the trial court based on the trial court’s use of the then-existing legal standard. When the Supreme Court decided the case last week, the five-member majority announced a new legal standard—one that Judge Sotomayor could hardly have divined and certainly not imposed when the Ricci case was before her.

The point of the Republican performance is not to derail Judge Sotomayor’s confirmation. The confirmation pageant is designed to try and resuscitate the image of the Republican Party as a viable and vibrant opposition party, to energize and excite its hard-line base, and of course, to raise money. The last goal means that we’ll necessarily see the reemergence of TV’s talking head, Republican National Committee Chair Michael Steele, from whom we’ve mercifully had an early summer reprieve.

Permitting the Republicans to paint mainstream civil rights organizations like LatinoJustice as a dangerous fringe group has real substantive, fundraising and reputational consequences for a host of organizations that are out there on the front lines in our courts, fighting to advance the cause of civil rights.

It’s likely that President Obama will have the opportunity to nominate one or two additional justices to the Supreme Court. Democrats and the White House would do well to start as they mean to go on. A powerful and compelling performance at the confirmation hearings by Judge Sotomayor herself, by the Democratic leadership of the Senate Judiciary Committee and by the White House staff (both in the committee’s chamber and on the evening chat shows where the conversational agenda is set) will set the stage for the next nomination. A smooth Sotomayor confirmation will provide space for President Obama to be even bolder in his next pick to the Supreme Court.

Sherrilyn A. Ifill is a regular contributor to The Root.