Supreme Court Spin

A little while ago, I went to the CNN.com website to see if there was any breaking news. And I found an interesting report about the approaching confirmation hearings for Supreme Court justice nominee Sonia Sotomayor.

Well, actually, the story isn't about the hearings, which will begin on Monday. It isn't, for example, about the members of the Senate Judiciary Committee or the current feelings of the members of the Senate.

It's about a poll in which 1,026 people were asked if they felt Sotomayor should be confirmed.

Now, this poll was conducted by CNN/Opinion Research Corp. I've heard things that cast some doubt on the reliability of the results of the organization's surveys. So I suggest that you take the findings with a grain or two of salt.

According to the poll, 47% of respondents favored her confirmation, 40% opposed it and 13% were not sure. The survey's sampling error is plus or minus three points.

Therefore, the poll is suggesting that, as of June 26–28 (which is when the survey was conducted), the best–case scenario for Sotomayor's opponents was that she was narrowly favored in what might be nearly a statistical tie. The best–case scenario for her supporters was that she could be comfortably ahead — but those who are undecided still hold the key.

The link on CNN's home page said, "Poll: Sotomayor confirmation favored," which may be accurate, but it still sounds slanted to me. After you click on the link, you get a much more realistic headline — "Poll: Nearly half support Sotomayor's confirmation" — with the story.

I think we'll get a good idea of Sotomayor's likelihood of being confirmed once the hearings begin.

But the point that the story sought to make is what I find really intriguing.

The story (which was written by CNN's Deputy Political Director Paul Steinhauser) quotes CNN Polling Director Keating Holland as saying the opposition to the nominee's confirmation is the highest from the party that is out of power in two decades. And that suggests the confirmation hearings "could turn into a partisan battle."

Two–thirds of Republicans oppose Sotomayor. In contrast, 53% of Democrats opposed Harriet Miers. And only 32% of Republicans opposed Ruth Bader Ginsburg.

The article doesn't indicate which nomination in the last 20 years was the most contentious prior to this one. But my guess would be that it was either George H.W. Bush's nomination of Clarence Thomas in 1991 or Ronald Reagan's nomination of Robert Bork in 1987. Thomas was narrowly confirmed and still sits on the Supreme Court. Bork was defeated in the Senate.

I'm inclined to think it was the Bork nomination. His role in the "Saturday Night Massacre" during the Nixon presidency was still remembered and resented, and Democrats had just regained control of the Senate when Reagan nominated Bork. Thomas' hearings were contentious from the start because of his conservative views, but the opposition did not turn vehement until Anita Hill's explosive testimony. Democrats controlled the Senate during Thomas' hearings as well.

Whether it was Bork or Thomas doesn't really matter. What seems apparent to me is that the Sotomayor confirmation hearings have the potential to drain the administration of any momentum it may have — and that can have a severe impact on its ability to push through legislation dealing with health care or the environment or anything else.

Supreme Court Overrules Sotomayor

The Supreme Court handed down its decision today in the reverse discrimination case from New Haven, Ct.

Supreme Court nominee Sonia Sotomayor sided with New Haven in the case when it came before her appellate court last year. But the Supreme Court favored the white firefighters who appealed the ruling over the role race should play in job advancement, claiming reverse discrimination.

The vote was 5–4.

There really isn't anything about this that surprises me.

The vote reflects the current makeup of the court — five mostly conservative justices, four mostly liberal justices.

The justice who is retiring — David Souter — dissented. Since Souter has a mostly progressive record with the Supreme Court, it can be assumed that Sotomayor will vote as he probably would have in future cases. At least, in this case, he supported her position.

Each side will spin this case in a way that favors its position. But, when all is said and done, nothing happened that is likely to derail Sotomayor's nomination. Those who were inclined to accuse Sotomayor of judicial activism before are still inclined to do so, but that alone doesn't seem likely to change the outcome.

And nothing has happened that would deter Sotomayor's supporters.

Marc Ambinder writes, in The Atlantic, that the nominee's critics are seizing on the ruling in their quest to deny her a spot on the bench. But those who hope to see Sotomayor's nomination defeated will need something more significant than this in their arsenal.

The Supreme Court Nominee

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Barack Obama's nomination of Sonia Sotomayor to replace David Souter on the Supreme Court is attracting considerable editorial reaction.

Much of it seems to be knee–jerk and predictable:

• The New York Times calls her an "inspired choice" who would be a "trailblazing figure."
  
  Much has been written about the quests made by previous presidents to find an Hispanic judge for the Supreme Court — in part to appeal to the fast–growing Hispanic community.
  
  But if such choices are made with the belief that it will permanently attract a large, elusive demographic to the president's party, they are misguided. Nearly 30 years ago, Ronald Reagan nominated the first woman to the Supreme Court. Reagan did win the support of women when he sought re–election in 1984 — even though the Democrats put a woman on their ticket — but the Republicans have been losing women in most elections ever since.
  
  For that matter, George W. Bush appointed both blacks and Hispanics to positions within his administration, but neither group has shown much loyalty to the Republican Party.
  
  The Times finds Sotomayor's personal story moving but is quick to add that she is "more than just a distinguished member of two underrepresented groups. She is an accomplished lawyer and judge, who could become an extraordinary Supreme Court justice."
  
  Adam Liptak writes, in the Times, that Sotomayor's judicial opinions are"marked by diligence, depth and unflashy competence," but warns that she has "issued no major decisions concerning abortion, the death penalty, gay rights or national security."
  
  Sotomayor's track record, suggests Liptak, makes her "remarkably cursory treatment" of an employment discrimination case last year "baffling." That ruling, which many observers expect to be the centerpiece in Sotomayor's confirmation hearings, "contained a single paragraph of reasoning," Liptak writes.
  
  The case has been appealed to the Supreme Court and its ruling is pending.


• The Washington Post is a bit more restrained but nevertheless approving of the selection.
  
  "Senators are right to closely scrutinize Judge Sotomayor's philosophy and qualifications," writes the Post. "She has produced a rich record of opinions as an appeals court judge for the Judiciary Committee to discuss. Senators also should remember that Mr. Obama, like any president, is entitled to deference in choosing a justice."
  
  With a solid Democratic majority in the Senate, it's hard to imagine a Democratic president encountering much difficulty winning the confirmation of a Supreme Court nominee. But unforeseen things happen all the time.
  
  Even if something unexpected doesn't pop up during the confirmation hearings, there is plenty in Sotomayor's documented history to discuss — not just her rulings from the bench but her statements in speeches. The Post cites one from 2001:

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  "The aspiration to impartiality is just that — it's an aspiration because it denies the fact that we are by our experiences making different choices than others. ... Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . ... I am not so sure that I agree with the statement. First, ... there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

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  The Post's Robert Barnes and Michael Fletcher write that Sotomayor is the "most controversial of [Obama's] potential nominees."
  
  They also remind readers that, assuming she is confirmed, Sotomayor may not be the first Hispanic member of the Supreme Court. Benjamin Cardozo (whose 139th birthday was Sunday, by the way) was said to have ancestors from Portugal, but he never acknowledged any Hispanic lineage. Perhaps he felt being Jewish was enough of a hurdle when he was chosen to replace Oliver Wendell Holmes in the 1930s.


• As I wrote on this blog last week, Bill Schneider pointed out on CNN that survey respondents felt it was more important to have a Supreme Court nominee with judicial experience than it was to have a woman, a black or a Hispanic nominated.
  
  As it turned out, Obama multi–tasked on this nomination. Sotomayor brings extensive judicial experience with her to the confirmation hearings — and she is an Hispanic female.
  
  But the New York Post seems only to see the demographics.
  
  "Once confirmed, she will join Ruth Bader Ginsburg as the High Court's second reflexively liberal, Ivy League–educated, female, former appellate jurist from the Big Apple," writes the Post. "Diversity for thee, but not for me — right, Mr. President?"
  
  Even so, the Post makes a point when it asks, "[D]id Obama make the most of his first opportunity to push the High Court to the left?"
  
  The Post observes that Obama could have picked someone who had a record of defending progressive principles, and, apparently, there were several such names on his list. "It's hard to imagine any of them refusing the opportunity to attempt a principled defense of affirmative action," writes the Post, but Sotomayor, who was chosen to succeed a progressive jurist, did — in the employment discrimination case I mentioned earlier.

From what I've seen so far, Sotomayor's judicial record contains few clues as to what she might do when other cases involving issues that progressives hold dear come before the High Court.

Obama has made his position on abortion well known, but he has come across as less than supportive of gay rights or marijuana legalization, two issues that many of his supporters hoped would have a champion in the White House. Sotomayor's positions on those issues, as well as how she stands on national security issues or the death penalty, are unclear.

Even though the confirmation hearings and the Senate as a whole will be controlled by Democrats, I hope the proceedings will not be a rubber–stamp for her nomination, that we will get some idea of where she stands before she is confirmed.

If not, she may well prove to be the kind of unpleasant surprise that Souter turned out to be for George H.W. Bush — a mysterious nominee whose legal views turn out to be different from what the president anticipated.