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.

As confirmation hearings for Judge Sonia Sotomayor begin before the Senate Judiciary Committee this week, it’s probably best to keep some perspective on the significance of the proceedings.

Unless there’s a violent crime in her past, Judge Sotomayor will be confirmed as an associate justice of the Supreme Court. Given Al Franken’s recent seating as the 60th Democratic vote in the Senate, it’s a numerical certainty that a nominee approved by Democrats will be confirmed. This reality will not stop Republicans from doing their best to drag Judge Sotomayor’s name through the mud and to paint her as a dangerous, racially driven, judicial activist.

In fact, Republicans have been “workshopping” their Sotomayor strategy over the past two weeks, staging mini-rehearsals in an attempt to figure out which tactic will most excite their base, not alienate Latino voters and refocus the seriously adrift Republican Party. Parts have been handed out to key players on the Senate Judiciary Committee. Sen. John Cornyn, R-Texas, is to bring the intellectual challenge. He’s been practicing with a cleverly conceived “Daily Question for Judge Sotomayor” on his Web site. Many of the questions posed are surprisingly substantive, and the explanatory text that accompanies each question is a good way to get his constituents and sympathetic journalists up to speed on the dynamics of Republican resistance to Judge Sotomayor’s nomination.

It's not that Cornyn’s has the most intellectual firepower of the Republicans on the committee, it just that he's the GOP senator from the state with the largest Latino population; so he can’t afford to look like he’s disrespecting Judge Sotomayor. It was Cornyn—not known as Mr. Conciliation—who forcefully condemned Newt Gingrich’s initial inflammatory rhetoric after Sotomayor’s nomination was announced. You don’t win over many Mexican-American voters in Texas when you pal around with guys who try to brand the first Hispanic Supreme Court nominee as a “Latina racist.”

Dewy-eyed and honey-tongued Sen. Lindsey Graham, R-S.C., is probably the brightest of the bunch, and he’s also the most personable. So he’ll ask tough questions, but he’ll also provide the compliments, the sugary acknowledgments of Judge Sotomayor’s accomplishments and remarkable family story. He’s good at this, although his awkward 2006 attempt to rehabilitate then-Judge Samuel Alito from charges of participation in an anti-affirmative action organization by asking, “Are you a bigot?” famously sent Mrs. Alito fleeing the committee’s chamber in tears. Graham’s a smart lawyer, so he’ll be able to get his digs in without sounding shrill. And his Southern charm will provide an air of courtliness, and, because Judge Sotomayor is a woman, the Republicans will need to avoid the appearance of engaging in an overly aggressive sexist attack.

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.

It’s worthwhile for the Democrats to be on their toes and not sleep through this drama simply because we already know the end. We know that the president doesn’t like drama and would prefer that the push-back be muted rather than aggressive. But attacks on Judge Sotomayor as a judge of color open the door for less explicit, but equally corrosive attacks against judges of color on both the federal and state bench. Sotomayor may be confirmed, but the atmosphere may be poisoned for other judges who don’t have an entire White House team behind them to protect their reputation and uphold their legitimacy in the community.

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.