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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Ranking minority member Sen. Jeff Sessions, R-Ala., will be the attack dog. He’ll continue to try and paint Sotomayor as a judge in favor of minorities. It’s going to be hard to do on Judge Sotomayor’s judicial record, which is decidedly mainstream, so he’ll rely on her speeches and her board memberships.

Sessions has focused a good deal of his attention over the past weeks on the Puerto Rican Legal Defense Fund. This is the organization that Tom Tancredo, former House representative from Colorado, slandered as “the Latino KKK.” In fact, the Puerto Rican Legal Defense Fund, now known as LatinoJustice, is the Latino version of the NAACP Legal Defense & Educational Fund, Inc., the civil rights law firm once led by the late Thurgood Marshall. It is neither a radical, nor a fringe organization. But Sessions, perhaps counting on the fact that much of his Republican base probably thinks that Puerto Rico is a foreign country, will try to paint the organization as one which threatens the social order.

The attack on LatinoJustice is a testament to the particular vulnerability of Latinos in our society. Neither Sessions nor Tancredo would dare to deride the NAACP Legal Defense Fund in those terms, but liberties can be taken with Latino organizations.

Judge Sotomayor’s speeches will be another source of attack. Count on this to be a virtual rehash of the apoplexy generated by Judge Sotomayor’s Berkeley speech in which—among other things—she talked about how her Latina heritage might affect her perspective on the bench. But even Judge Sotomayor’s record of speeches won’t yield much for Republicans. So many of her speeches are garden-variety judge talks. And some are quite thoughtful and interesting, including a 2001 introduction of Justice Antonin Scalia at Hofstra Law School and a fascinating speech in 2000 in which Judge Sotomayor describes the difference between what appellate judges and trial judges do.

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.