Though Sonia Sotomayor is on a glide path to confirmation to the U.S. Supreme Court, there are still several Republicans who would like to pull her down, arguing they do not know what kind of a jurist she will be.
We will hear them complain next week as the Senate Judiciary Committee votes on her nomination that even after lengthy questioning by the panel, they do not know whether her legal mind and not her Latina heart will guide her court opinions.
But they do know. They just might not feel comfortable with the current culture and politics that have led to the first-ever Hispanic appointment to the high court.
They know that Sotomayor is an intelligent, well-qualified adherent to U.S. constitutional law in her federal appellate court decisions who — in some Republicans’ estimation — was too pushy in her speeches about Latina empowerment before audiences who see her as a role model. (Yes, she is a role model, especially for Hispanics who have never seen one of their own in the White House or another top position in Washington.)
Though Sotomayor apologized to senators if she had offended anyone, she made clear during the Judiciary Committee hearings that she is no shrinking violet.
The senators know what type of justice they are getting.
Sen. Lindsey Graham (R-S.C.), who this week gave the Bronx native of Puerto Rican descent his support, told Sotomayor during the hearings that Republican opponents feel “unnerved” by her widely debated comments that a “wise Latina” might reach a better legal decision than a white guy because of her diverse life experiences.
The real moments of candor came on the fourth and final day of the hearings, after Sotomayor had left the witness table.
Republican leaders, seeking to diminish the candidacy of a self-proclaimed “affirmative action baby,” invited New Haven, Conn., firefighters Frank Ricci and Lt. Ben Vargas to testify. They were among a group of white and Hispanic firefighters denied promotions because not enough African-Americans passed the qualifying exam.
The U.S. District Court issued a lengthy decision against the Ricci reverse discrimination claims, and the 2nd Circuit Court of Appeals, where Sotomayor sits, concurred based on court precedent. The Supreme Court recently reversed the ruling and created new law in a narrow 5-4 decision.
Graham acknowledged the firefighters were poorly treated. But he also reminded them that the nation still struggles to find a balance on diversity issues.
“Please don’t lose sight of the fact, not so very long ago, the test was rigged a different way,” the Southern senator told Ricci. In other words, when only whites would have been promoted.
Graham also addressed a third Republican witness, Hispanic conservative commentator Linda Chavez. She opined that Sotomayor “has drunk deep from the well of identity politics” and it is “dark and poisonous.”
Chavez might have been the first Latina to serve in a Cabinet — President George W. Bush nominated her to be labor secretary — but she withdrew after it was revealed that she had paid an illegal immigrant from Guatemala who once lived in her home.
Graham forced Chavez to acknowledge that Republicans also think it is good politics to advance minorities. “Politics is politics,” he said.
“The point is, I am trying to get the country in a spot where you are not judged by one thing; that we can’t just look at her and say, ‘That’s it.’ When I look at her, I see speeches that bug the hell out of me, but I also see something that very much impresses me,” Graham said. “That’s just life, and that’s not a bad thing,” he underscored.
Republicans’ strategy to attack Sotomayor on affirmative action backfired because they relied heavily on the Ricci case without proving she was personally responsible for the courts’ initial rejections of the case, said Maria Blanco, executive director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity in California.
Even after Sotomayor apologized for her “wise Latina” comments, “she didn’t back off from her fundamental assertion that people come to judging based upon their experience, their gender, their class. She is going to have to work actively to put it aside.”
At the same time, Democrats could have helped Sotomayor look less evasive during the hearings, Blanco added, noting the case of a New York police officer who mailed bigoted, white supremacist materials. While Sotomayor’s critics would expect her to decide against a racist, she ruled that he had First Amendment protections.
“That really showed who she is and how she balances two very sensitive issues,” Blanco said.
As Sotomayor’s Senate vote nears, it is worth reviewing the last minority candidate to be confirmed to the U.S. Supreme Court.
That nominee 18 years ago, of course, was Justice Clarence Thomas, whose ethnicity — not qualifications — was the overriding consideration for his selection by then-President George H.W. Bush. Democratic senators could not reconcile Thomas’s promise to be an impartial jurist, given his earlier radical conservative speeches. When he came under severe attack, this opponent of affirmative action invoked his ethnicity and dared senators not to go any further.
Conversely, Sotomayor’s 17 years on the bench make her much more qualified than Thomas. President Barack Obama wanted a Hispanic but considered other female candidates until Sotomayor wowed him. Because of her speeches, Republicans are the ones daring her to highlight her ethnicity.
Sotomayor embraces her background, and the court will benefit from diversity.
Deep in their hearts, Republicans know that, too.
Gebe Martinez is a longtime journalist in Washington and a frequent lecturer and commentator on the policy and politics of Capitol Hill.
