Sotomayor’s cautious Supreme Court audition

What happened

Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, calmly defused attempts this week by Republican senators to portray her as a judicial activist with a liberal agenda, repeatedly insisting that she would judge cases strictly “by applying the law to the facts on hand.” In seeking to convince the Senate Judiciary Committee that she is the cautious, precedent-conscious judge that her 17-year record on the federal bench would indicate, Sotomayor retreated from her comment that a “wise Latina” judge would often reach better decisions than a white male. The nominee described the remark as a “rhetorical flourish” that she now regrets, originally deployed to inspire women and Latino audiences to believe that “their life experiences would enrich the legal system.”

Sotomayor declined to be drawn into philosophical arguments about the influence of race, class, or gender in deciding cases, and justified her ruling against a white firefighter in Ricci—a discrimination case recently overturned by the Supreme Court—on narrow legal grounds. “She was really backpedaling,” said Roger Clegg, president of the conservative Center for Equal Opportunity. “This is a classic confirmation conversion.” Sotomayor also refused to detail her views on abortion and said she had not been asked about the issue by the White House. While conceding that judges “are not robots,” she rejected President Obama’s claim that “empathy” is essential on the bench. “Judges can’t rely on what’s in their heart,” she said. “Congress makes the law.”

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What the editorials said

Republicans pressed Sotomayor on every point—except her “3,000-case record” as a federal judge, said The Miami Herald. She’s voted to uphold criminal convictions 92 percent of the time, upheld the deportation of immigrants 84 percent of the time, and has proved herself to be well within “the judicial mainstream.” By dwelling on her admittedly impolitic “wise Latina” remark, conservatives are “grasping at straws.”

With a nominee this slippery, what else could the senators do? said The Wall Street Journal. Instead of acknowledging her liberal philosophy, Sotomayor kept mum while Democrats on the committee extolled her “judicial modesty” and likened her to a neutral umpire who had “simply called balls and strikes.” Who is kidding whom? Fixated on her Puerto Rican background and steeped in liberal politics, Sotomayor displays “every sign” that she’ll be a “reliable liberal vote on every important issue.”

What the columnists said

Every time she’s confronted with her controversial remarks, said Jim Geraghty in National Review Online, Sotomayor says “she didn’t mean what everyone thought she meant; it was all a big misunderstanding.” By refusing to defend her own words, at least she has demonstrated that it’s inherently offensive to say “wise Latinas” have better judgment than ignorant white males.

Sotomayor has indeed fled the field, said Emily Bazelon in Slate.com. She could have refuted the dubious notion that a good judge is merely “a computer you crank up that spits out the right answer.” That simplistic view fails to admit that even the best judges reach different conclusions. Instead, Sotomayor retreated to “meaninglessness and safety,” pretending a judge is no more than an “umpire.”

Sotomayor may be wearing a mask, but Republicans have been stripped of theirs, said Eugene Robinson in The Washington Post. Sen. Jeff Sessions of Alabama actually said that “heritage and experience can have no bearing on a judge’s work,” as if the “white male justices he has voted to confirm” are not influenced by their backgrounds. Republicans take being white and male as the “natural order,” an ideal standard against which all else is alien and threatening. With African-Americans, Hispanics, and women now moving into national leadership roles, we have seen this week the last gasp of “white male exceptionalism and privilege.”

What next?

Barring some last-minute revelation, the Judiciary Committee is expected to send Sotomayor’s nomination to the full Senate, which will probably confirm her before going into recess Aug. 10. Since the judge would replace retiring Justice David Souter, the Court’s ideological composition—five conservatives and four liberals—should remain intact. Since Republicans were careful in their questioning of Sotomayor, history suggests that her nomination will have little effect among voters. “I don’t think there’s an upside for the Democrats or the Republicans in this,” said GOP strategist Matthew Dowd. “It’s neutral at best.”