As of late last week, a White House tally showed that Judge Sonia Sotomayor had met or made plans to meet with 88 senators. But the most important meeting — and the first public one — is scheduled to begin July 13.
Most of the story lines are already set for Sotomayor's hearing before the Senate Judiciary Committee, and just about all of them end with her winning confirmation as the next justice on the U.S. Supreme Court. That doesn't mean, though, that she'll have an easy time.
Republicans, invoking the Senate's constitutional responsibility of "advise and consent," will ask questions designed to throw Sotomayor off balance. They'll interrogate her about speeches in which she praised the judgment of "wise Latina" judges, and they'll try to figure out how she would rule on controversial issues. Sotomayor will tell her personal story to the nation, while trying to say as little as possible about her legal views.
As the hearing unfolds over about four days, here are 12 themes likely to emerge.
SONIA'S STORY
Sotomayor drew praise for her performance on May 26, when President Barack Obama introduced her to the nation. She spoke about her upbringing, thanked her family and at times strayed from her notes without making any gaffes. Since then, following the traditions of the confirmation process, she has been mostly silent. The confirmation hearing will be a chance for her to tout her rags-to-robes story, her sterling academic credentials and her personality. The effort will begin even before her opening statement, when a few old Washington hands — often current or former senators — formally present her to the Judiciary Committee. Then, it'll be Sotomayor and the cameras.
GHOSTS OF DECISIONS PAST
With more than 260 written opinions, Sotomayor's work on the U.S. Court of Appeals for the 2d Circuit will get scrutiny. But most of the focus will likely land on Ricci v. DeStefano — a case in which the Supreme Court last week overturned a 2d Circuit panel that included Sotomayor. Senators have given their thoughts on the litigation involving a mostly white group of New Haven, Conn., firefighters who wanted a promotion exam reinstated. But the public has not heard from Sotomayor. She joined a per curiam decision in favor of the city and voted against an en banc hearing. Senators will want to know why she ruled the way she did and whether she's changed her mind. Bill Yeomans, legal director of the liberal Alliance for Justice, said the case shouldn't be an issue, in part because Souter also sided with the city, "but I suspect that it still will be, obviously." The case will also be a chance, fairly or not, for senators to talk about some of Sotomayor's most controversial public statements: that a "wise Latina" judge could reach better decisions than a white male judge and that appeals courts "are where policy is made."
PAYING FOR CAMPAIGNS
Campaign finance would likely have been a hot topic even if it were not on the Supreme Court's immediate horizon. Sotomayor served from 1988 to 1992 on the board of the New York City agency that distributes public campaign funds. But in an order on June 29, the Court added urgency to the issue by scheduling oral arguments in September on whether it should overturn restrictions on corporate and union spending. The Court "is likely to address the constitutional questions head-on," writes Richard Hasen of the Election Law Blog and Loyola Law School, Los Angeles. So, expect questions from senators, but don't expect answers from Sotomayor, who will cite the need to remain neutral.
SESSIONS IN THE SPOTLIGHT
Sen. Jeff Sessions (R-Ala.) took over as the top Republican on the Judiciary Committee after Sen. Arlen Specter of Pennsylvania lept to the Democrats. Since then, facing the biggest test of his short tenure in leadership, Sessions has been feeling his way as the GOP point person on the Sotomayor nomination. He's given a series of speeches on the Senate floor about issues important to the Republican base, including Sotomayor's views on the Second Amendment and on citations of foreign law. Will his questions to Sotomayor resonate with those watching at home? Also in the spotlight on the Republican side: sens. Tom Coburn of Oklahoma, John Cornyn of Texas and Jon Kyl of Arizona.
FILLING BIG SHOES
Two Democrats who dominated Supreme Court confirmation hearings for two decades will be absent this time around: Vice President Joe Biden, a former chairman of the Judiciary Committee when he was a Democratic senator from Delaware, and Sen. Ted Kennedy (D-Mass.), another former chairman who gave up his committee seat this year to focus on health care legislation. Kennedy was particularly important in the confirmation of Justice Stephen Breyer, his former chief counsel. This time, the job of protecting a Democratic nominee will fall to Sen. Chuck Schumer (D-N.Y.) and to Chairman Patrick Leahy (D-Vt.), who for the first time will hold the gavel for a Supreme Court confirmation hearing.
NEWS FROM OUTSIDE
Immediately after her nomination, the most vocal reaction to Sotomayor among conservatives came from radio personality Rush Limbaugh and former Rep. Tom Tancredo (R-Colo.). Limbaugh called Sotomayor a "reverse racist" because of the "wise Latina" comment, and Tancredo criticized her membership in the Hispanic advocacy group La Raza, calling it a "Latino KKK." Senate Republicans, who had stayed away from quick judgments, were put on defense. Those comments — and any similar ones made in the next week — will echo inside Room 216 of the Hart Senate Office Building as Democrats try to highlight them and Republicans try to control their message.
EXECUTIVE POWER
Sen. Russ Feingold (D-Wis.), a prominent critic of the Bush administration's anti-terrorism policies, said in 2006 that then-Judge Samuel Alito Jr. would be a "dangerous addition" to the Supreme Court because of what Feingold called his deference to the executive branch. Three years later, Feingold is still criticizing anti-terrorism policies, and he is likely to quiz Sotomayor about the limits of presidential power. On the other side, Sen. Lindsey Graham (R-S.C.) will want to pin her down on whether the United State is at war and whether it can detainee suspected terrorists indefinitely. Although Sotomayor sharply questioned the Bush administration's position in a 2d Circuit case about rendition last December, she has rarely heard cases related to executive power.
ALL BUSINESS
The 2d Circuit doesn't get many hot-button cases about abortion, gun control or same-sex marriage. But as a federal trial and appellate judge in New York, Sotomayor heard plenty of business cases. Expect senators to ask about pre-emption and punitive damages, among other issues. Thomas Dupree Jr., a partner at Gibson, Dunn & Crutcher who has examined Sotomayor's business rulings, calls her record mixed. "If you're looking for pro-business cases, you can find those. If you're looking for anti-business cases, you can find those, too," Dupree said. A spokesman for the U.S. Chamber of Commerce said it is preparing an analysis for senators on Sotomayor's business record.
ANGER MANAGEMENT
Polite discussion about constitutional theory won't make the evening news. A shouting match would — and Sotomayor's reputation for assertiveness on and off the bench was well known even before her nomination. Republicans, if they can goad her into some heated disagreements, could portray her as too angry or testy to be a justice. "The temperament issue they're probably not going to ask her about directly, so they'll be addressing that more indirectly," said Curt Levey, executive director of the conservative Committee for Justice. "Certainly, if I were a Republican senator, I think that would be a very good strategy." Then again, they'd have to be careful not to insinuate anything about ethnicity or gender.
PET ISSUES
Some topics are less weighty than executive power, but senators will want to ask about them anyway. Sen. Herb Kohl (D-Wis.), a retail magnate, likes to ask nominees about antitrust law. Sen. Chuck Grassley (R-Iowa), a scourge of government waste, likes to know what nominees think about the constitutionality of the False Claims Act. As members of the Judiciary Committee, they'll get to ask Sotomayor her thoughts on those topics and on anything else they wish. They'll even get to ask follow-up questions in writing.
CROSSOVER SUPPORT
Kenneth Starr turned some heads last month when he told a group of reporters in Los Angeles that he supports Sotomayor's nomination. Starr also said that senators need to explore a "variety of issues" in her confirmation hearing, but the Pepperdine University School of Law dean and former special prosecutor still gave Sotomayor some much-needed Republican aid. Such endorsements — even behind the scenes — will be key to how much support Sotomayor gets from Republican senators, and Democrats will be sure to mention them in the hearing.
THE NEXT ONE
Even if they can't stop Sotomayor, Republicans could make it easier to block or influence Obama's next pick for the Court. They'll want to "lay down some markers that they may seek to use as the basis for opposing a future nominee, where the nominee would change the balance on the Court," said one lawyer who worked for Democrats on the Judiciary Committee. It's a strategy that Senate Democrats used five years ago, when half of them voted to confirm Chief Justice John Roberts Jr. knowing that doing so would give them more credibility to oppose President George W. Bush's next nominee. Of course, Alito was still confirmed, 58-42.
David Ingram can be reached at david.ingram@incisivemedia.com.
