First off, it must be said that Second Circuit Judge Sonia Sotomayor appears to have a relatively easy path to confirmation on the U.S. Supreme Court, if President Obama announces her nomination later this morning, as the Associated Press has reported he will. The likelihood of a filibuster is slim. Democrats control nearly 60, if not 60, seats in the Senate.
That said, conservatives are still going to mount an all out effort to stop her, if only because Supreme Court battles can be fund-raising, list-building manna from heaven. So how will they take on Sotomayor? This morning I spoke with Curt Levey, the executive director of the Committee For Justice, a conservative legal group, which will position itself in the middle of the coming fight. He said he was shocked by the reports that Obama had selected Sotomayor. “I didn’t think he would go that radical,” Levey said. “There is so much to go after there. . . . But I think that’s what happens when you box yourself into a corner–say it has to be a Hispanic, it has to be a woman.”
He listed three areas where Sotomayor was a relatively easy target: policy making from the bench, affirmative action, and second amendment rights. For good measure he called Sotomayor the “biggest intellectual lightweight of all the top nominees.” All of these problems, he said, could add up to “a Harriet Myers situation,” where Sotomayor would be forced to withdraw her nomination. (As a historical parallel, Myers is a strained one; she was forced to withdraw because of outrage within the president’s own party, something that is unlikely to happen with Sotomayor.)
Here is a quick breakdown of the big three targets Levey hopes to draw.
A Policy Making Judge. As a matter of political rhetoric, the worst thing that a judge can do is “make policy from the bench,” thus upsetting, conservatives say, the sacrosanct separation of powers in the constitution, which gives policy making powers to the executive and the legislature. On this point, Sotomayor has been known to tell jokes, which could cause problems. Interpreting these remarks — “court of appeals is where policy is made. And I know — and I know this is on tape and I should never say that because we don’t make law, I know” — requires a sufficient understanding of the limits and reach of sarcasm. But this will no doubt be an oft repeated clip in the coming weeks. (The liberal hounds at Media Matters are already on the case with the counter-spin.)
Affirmative Action. Sotomayor was part of a panel that rejected the complaint of a white New Haven firefighter who scored high on an in-house test but was denied promotion. The complaint later led to a split ruling on the Circuit Court, and was appealed to the Supreme Court. Stuart Taylor, of the National Journal, has also complained that Sotomayor and two other judges dismissed the case in an unnecessarily secretive way: “a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.”
Second Amendment. On a case that concerned nunchucks–no joke–Sotomayor ruled that the recent Supreme Court Heller decision, which struck down a District of Columbia gun ban on federal grounds, should not apply to states. The National Rifle Association types did not much like this. “That should be enough to draw the gun rights people,” said Levey.
Will any of it work to stop her? The odds are real long. But both liberals and conservatives have a lot to gain by making this a fight. So expect a noisy fight.
UPDATE: For more on lines of attack against Sotomayor read Tom Goldstein over at Scotusblog.