Sotomayor May Benefit From Another Bad Break

Even misfortune can be well timed. And if you have to have your lower leg in a cast and make your way on crutches for a while, why not do it when it can do you some good?

So it is for Judge Sonia Sotomayor, whose nomination to the Supreme Court is pending in the Senate. She may be hobbled for a few weeks, but her confirmation is now definitely on wheels.

Boarding a shuttle flight in New York for her appointments in Washington this week, the appellate judge suffered a small fracture of her right ankle. But she immediately announced she would keep up her schedule of schmoozing the U.S. senators who will vote on her nomination.

That means for the next few weeks we will see the New Yorker efforting through Senate hallways with a plucky grin or a look of determination.

It's perfect.

Like it or not, getting Senate confirmation to a high-profile post has a lot to do with public acceptance, which depends largely on the human factor. Of course the approval ratings of the nominating president matter, as do the qualifications and views of the nominee. But you can't overlook that personal impression.

That is why current Chief Justice John Roberts was easily confirmed and Robert Bork was rejected — even though their views may be hard to tell apart. Roberts appealed to the popular imagination as Mr. Perfect and Mr. Perfectly Humble. Bork came across as an arrogant, overbearing professor who wanted to be on the court to sample the "intellectual feast."

Consider too the last addition to the court, Justice Samuel Alito, who was chosen late in 2005 by President George W. Bush. Alito was the president's second choice after Harriet Miers, who had withdrawn after stirring controversy among conservatives. He was a man replacing a woman on the court (Sandra Day O'Connor) and a doctrinaire conservative replacing a moderate swing voter. But he had another problem. Call it judicial temperament if you like, but he came across as a bit of a cold fish.

No surprise, then, that initial reaction to the Alito nomination was tepid. An Ipsos survey in USA Today found only 38 percent of Americans backing him shortly after he was named. Among Republicans and evangelical Christians, his support was higher, but not nearly as high as Roberts had enjoyed earlier in the same year.

The Fox News poll had his backing at just 45 percent when the hearings began, and Alito's confirmation was by no means a done deal. Democrats, sensing a fresh wind at their back, were talking about a filibuster.

The hearings featured a monotonic Alito giving noncommittal answers to an array of Democratic inquisitors. The atmosphere grew increasingly tense until, on the second day, a Republican senator supporting Alito recited a long litany of the attacks against him. Suddenly, Alito's wife, Martha-Ann, broke down sobbing in her front row seat. She left the hearing room in tears.

The moment was captured and replayed endlessly on video that day and night and featured on the nation's front pages the next day. From then on, the anxiety that had hung in the room seemed to dissipate. At week's end, polls showed the public preferred Alito's performance to that of the committee. The die was cast: The ultimate Senate vote to confirm was 58 to 42.

Sotomayor's poll numbers have been better than Alito's from the start. A Quinnipiac University poll of more than 3,400 people nationwide in the first week of June found 55 percent supporting her confirmation. Her numbers held up among all races and religious groups except white evangelical Christians, who opposed her nomination 41 percent to 35 percent.

The very same Quinnipiac poll also found clear majorities in all categories disagreeing with Sotomayor on her most famous ruling. That would be the case in which she upheld the city of New Haven's decision to throw out a firefighters promotion exam on which minority applicants did poorly. Quinnipiac found more than 70 percent disagreed with that ruling, and 55 percent thought affirmative action should be abolished.

But at the same time, people didn't seem to hold the New Haven ruling against Sotomayor personally. That may be because her human characteristics, lifelong struggle and exemplary success still resonate with people of all kinds and views. Her personal story (diagnosed with diabetes at 8, losing her father at 9) has been a hit since the day President Obama stood with her at the White House and she saluted her mother, weeping in the front row.

In recent days, some of the early resistance to her nomination has weakened. Some of her most outspoken detractors have retracted their most quoted comments (Newt Gingrich said he shouldn't have called her a racist). Former first lady Laura Bush went on ABC saying Sotomayor's nomination made her feel proud as a woman.

In other words, being on Sotomayor's side seems the better place to be. In the end, the broken ankle may be just one more apparent disadvantage that ultimately makes this woman stronger, and harder to resist.

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.