The True Confirmation “Battle” Begins
President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court initially provoked considerable consternation from certain circles, with Rush Limbaugh even characterizing her as a “reverse racist” based on a line taken out of context (for reponses, click here and here) from a speech at UC Berkeley several years ago.
Little attention was initially paid to the many opinions that she has written since becoming a federal judge in 1992, which makes the evaluation of her nomination much different than that of Chief Justice John Roberts who had just a couple of years of experience on the bench.
Much of the early hullaballo over the Sotomayor nomination mellowed as Republicans saw where the harsh rhetoric was leading them (basically down the tubes) with Latino voters. Indeed, there has been a kind of radio silence on the Sotomayor nomination for the last few weeks.
Now, the Term is over. Justice Souter has walked into the sunset. And, with the Supreme Court’s decision in Ricci (see the analysis of that decision from SCOTUSBLOG), the confirmation process should enter a more substantive (and hopefully rational) phase.
Academics and lawyers from a variety of political persuasions have been looking at Judge Sotomayor’s decisions for weeks. We can expect a variety of diverse views about her joining the lower court opinion in Ricci.
This all, as my colleague Vik Amar has pointed out, is a fair game in the confirmation process. We should be looking at a nominee’s work product as a judge and asking questions like this: did Ricci change the law (as Linda Greenhouse argues) in a way that the Second Circuit (and Judge Sotomayor) could not legitimately do?
This all could be moot if, as Tom Goldstein opines, the confirmation process is in fact over and Justice Sotomayor alreadt is a done deal. I am not so sure and look forward to the confirmation hearings in July. One never knows how things like this might go. But, given that she would be another historic first on the Court as Thurgood Marshall and Sandra Day O’Connor were, Sonia Sotomayor, I bet, is taking nothing for granted. Neither am I. The spectacle of the Clarence Thomas confirmation hearings remain in our collective minds (no, I know of no “smoking guns”).