In talking points distributed by the Senate Republican Conference to its members before the Memorial Day recess, Senate GOP leaders recommended that the GOP should neither "pre-judge" nor "pre-confirm" any Obama nominee. They said that any nominee should live by the baseball metaphor used by John G. Roberts Jr. during his 2005 Supreme Court confirmation hearing, when he said that a justice should simply "call balls and strikes" and not "pitch or bat."
Opposition to Sotomayor's nomination surely could emerge during the confirmation process, Republicans say, especially in light of opposition already from some conservative groups off of Capitol Hill. But Republicans want to be seen as being fair in considering her nomination.
"It's not that Republicans are without criticism or concern, but we believe the process needs to play out to get the full review of the record before making a determination," a Senate GOP aide said Tuesday morning.
Some aides acknowledge the need to tread delicately around Sotomayor as well, given that she would be the first Hispanic justice at a time when the GOP has lost Latinos as a critical constituency.
In 1998, 28 Republicans voted against Sotomayor's confirmation to the U.S. Court of Appeals for the Second Circuit in 1998.
Among the no votes were current Minority Leader Mitch McConnell, current Minority Whip John Kyl and Sen. Jeff Sessions, currently the ranking Republican on the Judiciary Committee.
In the days running up to Obama's first Supreme Court nomination, Senate Republicans signaled that they intended to take their time in confirming anyone.
They suggested that there was no rush to push for confirmation before Congress' August recess — which Obama wants. If Republicans believe that the Democrats are moving too quickly, that could give cover for many of them to vote against the nomination.
Democrats are expected to be strongly supportive of the nomination, and they don't want a nomination hanging over an August recess, which would potentially give time for the GOP to rile up opposition to Sotomayor.
Both sides want a new justice to replace David Souter by October, when the new Supreme Court term begins in October.
Since Sandra Day O'Connor's nomination by President Ronald Reagan in 1981, the average number of days between the designation of a nominee and the start of hearings has been 45 days.