Sonia and the Supremes
Sotomayor was nominated by a Democratic President, Barack Obama, and placed before a Democratic-controlled Senate with a filibuster-proof majority of 60 seats. True, two Senators are independents who caucus with the Democrats, and Senator Kennedy was unable to make the vote on account of ill health, but the threat of a filibuster remained remote. Given that nine Republicans ultimately crossed the aisle and supported her confirmation, any effort to impede the vote would have proved futile. True, a good portion of the Democratic caucus is probably more moderate than the President, but he arguably lies at the ideological fulcrum of his party. Contrast this with the last three nominees outright rejected by the Senate, Clement Haynsworth in 1969, G. Harrold Carswell in 1970, and Robert Bork in 1987. Each was nominated by a Republican president who faced a Senate controlled by Democrats. From a pure partisan perspective, with history as her guide, Sotomayor faced favorable terrain.
Turning to ideology, Sotomayor’s 17-year track record on the federal bench provided few glimpses of extremism. Her rulings on cases concerning affirmative action, the Second Amendment, and property rights drew conservative scrutiny, but in total, Sotomayor’s tenure as a federal district and appellate judge was well within the judicial mainstream, and once more close to the center of the Senate Democratic Caucus.
Moreover, she was slotted to replace a moderate-to-liberal Justice in David Souter. With or without Sotomayor, the conservative majority would remain, tempered by the less reliable Justice Anthony Kennedy. It is generally assumed that Sotomayor is no more liberal than Souter. Indeed, one could make an argument that she is more moderate, particularly on matters of law and order. Souter was long known as the “stealth candidate” given that he was nominated by a Republican president (Bush 41), yet drifted toward the Court’s left-leaning bloc. Sotomayor's long track record suggests that a reprisal of history is unlikely.
Bork, by comparison, was picked to replace the moderate Lewis Powell, who for 15 years served as the Court’s swing vote. He would have tilted the Court decisively to the right, thus his Democratic detractors’ successful derailment.
When Supreme Court nominees raise ideological eyebrows, their professional qualifications can either rescue or destroy their candidacy. Sotomayor made two controversial remarks off the bench that triggered conservative sirens, one in favor of judicial activism, and the second centering on empathy toward certain oppressed groups given her status as a “wise Latina.” She summarily dismissed these sound bytes during her confirmation hearing, and her Ivy League background, work as a partner at a corporate law firm, and seventeen years of service as a federal judge spoke to the fact that she is “well-qualified.” In sum, nine Republicans abandoned any ideological misgivings, partially on account of this impressive track record.
Presidents are much more likely to experience successful Supreme Court nominations during the early part of their term in office. Obama was fortunate to receive word of Souter’s retirement just past the 100-day mark of his presidency, a period widely known as his political “honeymoon.” It is during these days that public opinion remains high, Congress is more deferential, and his agenda is often rubber-stamped. Sotomayor’s nomination arrived during a flurry of political activity in both the West Wing and on Capitol Hill. Health care reform, cap and trade legislation, and corporate regulation crowd the agenda. Fortunately for Obama, Sotomayor’s nomination did little to detail his lofty ambitions. Short of an early defense of her controversial remarks, her confirmation sailed along after Obama’s late-May launch, allowing Obama to save political capital for the more contentious battles sure to follow this summer and fall.
In contrast, Reagan’s rendezvous with Bork took place during the second to last year of his final term in office. A lame duck by every definition, Reagan was working with a Democratic-controlled Senate for the first time that smelled blood as the Iran Contra Scandal took root. Despite Reagan repeated attempts to go over the heads of Congress and use his superior communication skills, Bork secured a mere 42 votes and the beleaguered president was forced back to the drawing board.
Sotomayor’s race undoubtedly played a role in Senators’ political calculations as her nomination winded its way through committee toward a full floor vote. Republicans understood that their share of the Latino vote was sliced thin by Obama and the Democrats in the November 2008 election, and that they placed it in further jeopardy by opposing her confirmation. Some, like Judiciary Committee member Lindsey Graham (R-SC), supported Sotomayor on the basis of her qualifications. Others, like Mel Martinez (R-FL), identified with a common heritage. Though thirty Republicans voted against Sotomayor, few made their reservations public, and those who did were mild and reserved in their respective rebukes. Unlike the Democrats’ treatment of Justice Alito in 2006, a filibuster was never on the table.
Turn back the clock to 1991 and Clarence Thomas’ infamous confirmation ordeal. Thomas attracted African-American sympathy despite his conservative views, effectively splitting Democratic Senators from one of their core constituencies. They shied away from directly supporting Anita Hill or blasting Thomas directly. Two Republicans voted against him, but eleven Democrats crossed party lines and helped vault Thomas across the finish line in the closest confirmation vote in more than a century, 52-48.
Missing from the conversation in the Sotomayor confirmation hearings was President Obama’s own record as a Senator in Supreme Court confirmation votes. Both John Roberts and Samuel Alito shared Sotomayor’s lofty credentials, yet the future president cast his vote with the opposition in both incidents. In so doing, it was difficult for Obama to dismiss ideological opposition to Sotomayor when he exercised the same line of argument in a different political environment. Sotomayor’s 68 votes were ten short of the 78 achieved by Roberts, and her 31 detractors were eleven fewer than the 42 suffered by Alito.
This tradeoff between politics and legal credentials is at the center of the debate over the Senate’s true role as a provider of “advice and consent” in the Supreme Court confirmation process. Senators in the minority peg their opposition to ideology, while those on higher ground trumpet professional qualifications. Given the alignment of stars in Sotomayor’s strive for the Supremes, her sterling resume made confirmation all but inevitable.