In the two weeks since President Obama made Judge Sonia Sotomayor his pick for the Supreme Court, outnumbered Republicans on Capitol Hill and conservative activists have struggled mightily over how to mount a credible opposition.
Conservative efforts to frame a coherent case against the nation's first Hispanic nominee took on new urgency Tuesday, after Senate Judiciary Chairman Patrick Leahy (D-VT) announced that Sotomayor's confirmation hearings will begin July 13, months earlier than many GOP leaders had wanted.
The GOP is still debating how to make that case against a nominee who, barring a disqualifying revelation, is expected to emerge from her Senate review as the newest justice. But consensus is emerging over how to use Sotomayor's confirmation process --and its three or four days of televised hearings — as a jumping-off point to appeal to the moderate and independent voters whom the party has been rapidly shedding.
Rule 1: Focus On Her Rulings
Conservatives seem intent on staying away from the kinds of personal attacks that marked the days following Sotomayor's nomination. Instead, they'll focus on her role --both while on the bench and before — in racial preference cases and in cases that conservatives say suggest the judge's decisions were colored by "empathy" based on her own ethnic identity.
"There's clearly an effort under way to make this an educational experience and to draw a clear line where liberals stand on the courts and where conservatives stand, and what they're looking for in a judge," says Tony Perkins of the conservative Family Research Council.
"The party should celebrate yet another barrier broken in American politics," says Whit Ayres, a longtime GOP pollster and consultant, "while simultaneously engaging in a professional and respectful way the very real substantive issue that her nomination raises."
That means examining what role the judge's Puerto Rican ethnicity has played in her interpretation of the law, Ayres says, "and the extent to which group rights trump individual rights."
For Ayres and other conservatives, that leads directly to Sotomayor's concurrence in Ricci v. DeStefano. In that opinion, a three-judge 2nd Circuit Court of Appeals panel on which Sotomayor sat upheld the city of New Haven's decision to throw out a firefighters promotions test because no African-Americans scored high enough to be eligible for advancement.
White firefighters claimed racism, and the case is currently before the Supreme Court. During oral arguments, the high court appeared sympathetic to the firefighters' claims; it's expected to issue a decision this month.
Sotomayor's decision, Ayres says, "runs against the grain of most Americans' sense of fair play."
A recent analysis by Tom Goldstein of SCOTUSblog found that in the 96 race-related cases decided by Sotomayor while on the court of appeals, she has voted to reject discrimination claims 78 times and upheld the claims 10 times — nine of those times joining her fellow judges in a unanimous decision.
But Ayres argues that many of the cases may have been "slam-dunks, and not raised significant issues." He says that Goldstein's analysis isn't sufficient enough to suggest that the high-profile Ricci case doesn't matter.
Ricci and Race
Conservative lawyers provided more details on their plan of attack Tuesday during a call with journalists that was organized by the Federalist Society.
While the Ricci opinion is likely to form the centerpiece of the conservative case against Sotomayor, look for Republican senators to also engage her in lines of questioning on the following:
• Her role, as a board member with the Puerto Rican Legal Defense and Education Fund, in the group's successful suit in the 1980s against the New York City Police Department charging that its promotional exam discriminated against minority candidates.
• Her reasoning behind joining a dissenting opinion in 2000 that suggested police in Oneonta, N.Y., violated the Constitution when they rounded up African-American men for interrogation after a local white woman reported being attacked by a black male. A majority on a divided court disagreed.
• Her failure last week to submit a memo she signed while an assistant district attorney in Manhattan in which she asserted that capital punishment is "associated with evident racism in our society."
• A three-judge panel opinion she signed on to earlier this year that says the Second Amendment right to bear arms applies only to limits the federal government seeks to impose on that right.
With the table set, the hearings, says GOP strategist Kevin Madden, "offer us an opportunity to make an argument on fairness — how fairness is interpreted through the law, not on one race against the other."
Treading Lightly In The Face Of History
In announcing the start date for hearings, Leahy took a slap at critics who have characterized Sotomayor as racist, and he urged the Senate to strive for bipartisanship in the wake of the "historic nomination."
"She deserves a fair hearing," he said.
GOP strategist Brad Blakeman says he agrees, and he advises conservatives to tread lightly and hold their fodder for the hearings: "Trying to fight a battle in the press or using third parties is fruitless to somebody who is likely to be confirmed."
But that doesn't mean, he says, that senators should abdicate their responsibility to question her closely and keep up the drumbeat of conservative concerns.
So after stumbling out of the gate, conservatives appear to be getting their talking points and lines of inquiry in order. And none too soon: A USA Today/Gallup poll released Tuesday says that a third of Republicans say they view their party unfavorably, compared with just 4 percent of Democrats who feel the same about their party.
Aiming For Independent Voters
The best-case outcome for Republicans once Sotomayor's hearings and Senate confirmation vote are over? A strong showing that appeals to independent voters, Ayres says.
"When it comes to issues like affirmative action and the Ricci case, independents are closer to Republicans than Democrats," he says. "The hearings should make that crystal clear."
But much of that depends, Blakeman cautions, on how well conservatives "stick to the issues and stick to her decisions and ability to serve fairly, and not go off on tangents to hurt or destroy her."
After all, the ultimate judges, he says, are the American people sitting at home and making their own assessments about Sotomayor — not only her ability and credibility, but that of their elected leaders.