Opening Day at Judiciary Park: Sotomayor On Deck

The first day of the Sotomayor hearings yielded many baseball references but little in the way of home runs and strikeouts — or surprises. Democrats lauded Sotomayor’s rags‐​to‐​riches story and career achievements. Republicans questioned the “wise Latina’s” commitment to objectivity, whether she would be a “judicial activist” and — most interesting to me — whether she planned to use foreign law in helping her to interpret the Constitution. These would clearly be the lines of attack and counterattack.


It was all “set pieces” — prepared statements that often said more about the senators themselves than about the nominee. The stars of the show were unquestionably Senators Sessions (R‑AL), Graham (R‑SC), and Franken (D‑SNLMN). Sessions, the ranking member, is armed for bear and has clearly been reading the memos my colleagues around town have been writing. Graham marches to his own (very candid) drummer, pronouncing that Sotomayor would be confirmed unless she had a “complete meltdown.” Franken… well he’s just happy to be on the big stage on his sixth day in office.


Assuming Sotomayor is confirmed, however, this will not be that big a political victory for President Obama. With Democrats holding a 60 – 40 margin in the Senate, confirmation has long been expected, and the political markets have already discounted for it. The president will likely see a temporary blip of support, particularly among Hispanics, but not as much as one might think — because those who are high on Sotomayor already support Obama. Moreover, most people will soon forget the Supreme Court and go back to worrying about their personal economic situation — which the president’s policies are certainly not helping.


In a way, this week’s hearings and the confirmation process generally have more downside potential for the administration than upside. Not because of the small chance Sotomayor won’t get confirmed — which would be a real blow — but because issues such as affirmative action, property rights, gun rights, and the use of foreign law are all being thrust to the forefront of the news cycle. These issues, and the debate over judicial philosophy generally, are all winners for the Republicans — if they play their cards right.


In any event, tomorrow the real fun begins — with the blue team tossing softballs at the nominee and the red team sending the high heat.