Your Sotomayor Scorecard

Here's a rare moment of personal privilege. What follows is a list of things that feel, to me, relevant, and less so, regarding the confirmation of Supreme Court nominee Sonia Sotomayor.

First, and foremost: Was this an affirmative action choice? Was this the dreaded "identity politics" at its worst? I'm not going to pretend that Sotomayor's gender and heritage had nothing to do with her being selected. I'm well aware that of the nine potential court picks President Obama was reviewing, only one was a white male.

 

But here's another way of looking at it. In the history of the republic, we've had 110 Supreme Court justices. One hundred eight have been white. One hundred eight have been male. One hundred ten have not been Hispanic. There are some people, and my e-mail inbox reflects this, who resent the fact that ethnicity and color are factors; the real issue, they argue, should be qualifications and qualifications only. I say they are not mutually exclusive. Yes, Sotomayor is a woman and she is Hispanic. She also has 17 years' experience as a judge, including the last 11 on the 2nd Circuit of the U.S. Court of Appeals.

(One more historical reference before I go any further: If confirmed, Sotomayor would be the sixth Roman Catholic on the court — a record. She would join Samuel Alito, Anthony Kennedy, John Roberts, Antonin Scalia and Clarence Thomas. Ruth Bader Ginsburg and Stephen Breyer are Jewish, and John Paul Stevens is Protestant, as is the departing Souter.)

The biggest controversy about her nomination seems to have centered on her 2001 speech. At the University of California, Berkeley law school, Sotomayor said — and I think everyone probably has this quote memorized by now — "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Critics have pounced on that comment. She's a racist! they claim. Obama himself said that, given the opportunity, Sotomayor would have put it differently. I think her point that being a Hispanic woman would mean she'd arrive at a better conclusion was a bit unfortunate. But isn't there some truth to the fact that we all use our backgrounds, our life experiences, our personal makeup, in arriving at conclusions? How can we not? I suspect judges do it too.

Let's also not forget — and Sotomayor defenders are making sure we do not — a quote by Supreme Court Justice Samuel Alito during his confirmation hearings: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

But, in fairness, Alito did not say his experiences made him a "better" judge than someone who had a different background. She will no doubt be asked to explain what she meant.

Meanwhile, some of her high-profile opponents say her 2001 comment is an example of a form of racism. Rush Limbaugh called her a "reverse racist" and compared her to David Duke. Newt Gingrich concluded that if a white man had said what she said, his nomination would be lost, and so a "Latina woman racist should also withdraw."

Now, let's get real here. There is, I would think, a difference between being aware of racial considerations and being a racist. That Sotomayor is being portrayed as a "racist" because of this speech seems wildly off-course to me.

Of course, Democrats are no strangers to using the racist card either; Jeff Sessions, now the Senate Judiciary Committee's ranking Republican, can attest to that. But there's a certain "ick" factor in watching conservatives employ that tactic here. Syndicated columnist Kathleen Parker, a conservative herself, had what I thought was the perfect response: "Could a white man get away with saying something comparable about a Latina? Of course not. After Latinas have run the world for 2,000 years, they won't be able to say it ever again either."

Good for her.

And while we're on the subject, why in the world has CNN decided that what former Rep. Tom Tancredo (R-CO) has to say on Sotomayor is of any interest to anybody? Tancredo likened the National Council of La Raza, the Hispanic advocacy organization that Sotomayor joined, to a "Latino KKK without the hoods or nooses." The only thing the rantings of Tancredo have accomplished is that it made a Sotomayor detractor look ridiculous, or worse. Which may have been CNN's goal from the outset. Explain to me an alternative reason why Tancredo is on TV and why we should care what he has to say.

It seems clear that movement conservatives would love a fight here. Republican lawmakers, especially senators, are being far more cautious.

Meanwhile, Obama warns against Republican "political posturing and ideological brinksmanship." It is very possible, believe it or not, that Republicans could ask tough questions about Sotomayor based on principle and ideology. Democrats have been known to do the same thing. Only four Democrats, for example, voted to confirm Alito to the court in 2006, and I don't remember a big hue and cry back then — other than from Republicans — that Democrats were playing politics. It was principle, we were told.

The race angle here has made the situation a bit more dicey. Limbaugh and Gingrich and others should know better. At the same time, so should Democrats, who suggest — as Sen. Chuck Schumer (D-NY) has — that Republicans who oppose Sotomayor do so at their own peril. You don't vote against a Hispanic (or a black or a Jewish or a Catholic) Supreme Court nominee for that reason, but you don't vote vote for him or her for that reason either. Obviously, if you have qualms about Sotomayor as a Supreme Court justice, then you look at her rulings, not her heritage, her accent, or the words of a 2001 speech.

One more thought about Republicans getting retribution from Hispanic voters if they vote against her nomination. I'm sure the possibility exists, but such a blatant threat coming from Sotomayor supporters is not helpful. And as for retribution, I don't recall Democrats paying a price with blacks or Hispanics by taking on Clarence Thomas, Alberto Gonzales and Miguel Estrada. No, the situations are not the same, but maybe the level of rhetoric can be improved?

Another line of opposition that seems off the mark is the point that half of Sotomayor's rulings have been reversed by the Supreme Court. One, that's not unusual, and two, it's not a cause for disqualification. The reversal rate by the Supreme Court for Samuel Alito, for example, was 100 percent. That's a bogus issue.

But her rulings are not. That's what should determine whether or not she is fit to serve. And that leads to Ricci v. DeStefano, which I suspect will probably dominate her confirmation hearings. It's the reverse-discrimination case involving white firefighters in New Haven, Conn.

But when all is said and done, and barring some scandal or shocker that emerges from the hearings — which will begin in late July — Sotomayor will be on the court by the first Monday in October. And she'll be confirmed with at least 75 votes.

Time for a new contest: Your prediction for the final Senate vote. The first person with the exact accurate tally will win a Jimmy Carter for President bumper sticker — I'm picking Carter because he's the only president in decades who served a full term but never had the opportunity to nominate someone to the Supreme Court.

Send your prediction to politicaljunkie@npr.org.