Slights, Revenge And, Oh Yeah, Sotomayor: My Confirmation Diary

Ostensibly, it's about Sonia Sotomayor. Should she, or not, be confirmed to be an associate justice of the U.S. Supreme Court.

But it's much more than that. Democrats know it, Republicans know it, President Obama knows it, and I suspect the nominee does as well. And so does everyone watching the confirmation hearings on television.

We saw it Monday, as soon as the hearings began. Pat Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, reminded us about the prejudices against Thurgood Marshall, the court's first African-American justice who was confirmed in 1967, and Louis Brandeis, the first Jewish justice, confirmed in 1916.

There were, as I saw it, two reasons for Leahy's approach. One, of course, was to express the pride that history was being made once again, in the nomination of the first Hispanic for the court.

The other was more political. There were ugly things said about Marshall and Brandeis, and there are ugly things being said about Sotomayor. You vote against Sonia Sotomayor and you give in to that prejudice.

Then Republicans had their say. Being Hispanic is indeed special, they agreed. And it was special when President George W. Bush nominated Miguel Estrada as an appellate court judge. But the Democrats filibustered him and refused to hold hearings. So much for history, they said.

So they argued about the Estrada nomination.

And, perhaps, we're also arguing about future Supreme Court nominations. The fact is, had Sotomayor not been nominated to replace Justice David Souter — had it instead been a swing vote, or even a conservative — this would be World War III. Now, it's maybe just a Spanish Civil War. Practice, for some future confrontation, when it will really count.

Oh, how I wish they asked her about her "wise Latina" remark.

Oh, wait. They did. Over and over and over and over.

OK, they got Sotomayor to say that alright, perhaps it wasn't the best choice of words. And maybe Obama's use of "empathy" might not have hit the exact right note. But they failed, despite repeated efforts, to pin her down on abortion and guns and privacy.

No surprise. She's obviously watched previous confirmation hearings, of nominees from every ideological spectrum.

Republicans also attempted to score points by reminding everyone that, as a senator, Obama voted against both John Roberts and Samuel Alito, even participating in a Democrat-led filibuster attempt against the latter, and here he is now, as president, urging petty politics to be put aside. As the Washington Post's Ruth Marcus wrote yesterday, the question was:

Why should Republican senators weighing President Obama's nominee give him more leeway to name justices to his liking than then-Sen. Obama was willing to accord President Bush when he voted against both Bush nominees? As the hearings got under way, Republican senator after Republican senator raised this question. Democrat after Democrat ignored it.

A fair question. But for Democrats, who have the votes, there was no reason to respond.

But there is a difference between this hearing and, say, the Alito hearing in 2006. Alito, a solid conservative, replaced swing vote Sandra Day O'Connor. That was as close to a sea change on the court as we've witnessed in quite some time. Replacing a pro Roe vote with a Roe opponent. Trading Souter for Sotomayor is hardly that.

I thought South Carolina's Lindsey Graham was the best on the Republican side, and Rhode Island's Sheldon Whitehouse on the Democratic side. An honorable mention goes to John Cornyn of Texas, whose question about abortion seemed to elicit at least a blink from the nominee. But there is no such thing as a "gotcha" question to Sotomayor. She never lost her cool, never took the bait, always responding in a plodding and methodical way. The style perfectly suited the White House, as well as her chances for an easy confirmation, and maybe that's what it's all about. But I had a hard time getting any insight into her soul. She's obviously no Vladimir Putin.

Still, the nominee was impressive, and smart. It was clear why the president picked her.

Everyone was waiting for comedy from Al Franken (D-MN), but he's been a pretty serious chap since taking his Senate seat earlier this month. And for the first time since I can remember, I wasn't particularly interested in what Arlen Specter had to say. He was more fun as a Republican, when he was frustrating Republicans and Democrats alike.

A nugget, a sad one, courtesy of Congressional Quarterly's Keith Perine: This was the first Senate Judiciary Supreme Court confirmation hearing since Arthur Goldberg, in 1962, that Ted Kennedy was not attending. The Massachusetts Democrat, who was first elected in '62, is suffering from brain cancer and left the committee last year.

As I expected, Democrats who hated how Roberts and Alito shielded their ideologies from Senate questioners and avoided giving specific answers back in 2005 and 2006, respectively, were lauding how Sotomayor did the same thing. The opposite, of course, is true for the Republicans.

Best tongue-in-cheek summation of the hearings thus far: Gail Collins, in today's New York Times. Too funny to simply print excerpts; you should read the whole thing.

Chairman Leahy is hoping for a committee vote on Tuesday. There's no question that all 12 Democrats will vote for confirmation. I'm guessing that she'll get at least one GOP vote, and I'm thinking it's Orrin Hatch of Utah. Some of my colleagues are inclined to add S.C.'s Graham to that list, but I wonder.

I say the committee will vote 13-6 to confirm.

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