President Obama’s nomination of Judge Sonia Sotomayor to replace Justice David Souter on the Supreme Court will pose difficulties for Republicans on the Senate Judiciary Committee. Judge Sotomayor’s personal story is deeply compelling, and she is the first Latino nominee to the High Court. Republicans need to reach out to that important voting block. But they also need to reestablish their identity, which has been rooted, from the time of Lincoln, not in the “identity politics” that has so dominated the Democrats’ agenda in recent years but in the fundamental idea that every American should be treated as an individual, nowhere more clearly captured than in our national motto, E Pluribus Unum—from many, one.
Here is an opportunity for Republicans to reestablish that identity, if they handle it smartly, because there is much in Judge Sotomayor’s record to suggest that she subscribes to identity politics. She has made statements to that effect that will have to be explained, which if made by white men would be roundly and rightly condemned. And the Ricci case that the Supreme Court will hand down next month, just before Senate confirmation hearings are likely to begin, will tee the issues up nicely. The case was brought by a sympathetic plaintiff, suffering from dyslexia, who studied hard for a neutral fireman’s promotion exam, only to be told by the city of New Haven, after he had scored well, that the results would be thrown out because they were racially unbalanced. The appellate panel reviewing the district court’s decision, on which Judge Sotomayor sat, summarily upheld the district court’s dismissal of the complaint, refusing to grapple with the constitutional issues at stake. If ever a case cried out for “empathy,” this was it—not for Mr. Ricci, who was asking for no empathy, but for the principle of equality before the law, on which he staked his claim of racial discrimination against the city.
But Democrats too should be raising those questions, because equality before the law and the rule of law are indifferent to party. Tragically, however, the judicial confirmation process has been thoroughly politicized in recent years. After the stormy confirmation hearings in 1987 and 1991 for Judges Bork and Thomas, President Clinton’s nominations of Judges Ginsburg and Breyer sailed through the confirmation process with little opposition and even less acrimony. With the return of Republican nominees after the election of George W. Bush, however, Senate Democrats resumed their scorched earth practices, starting with appellate court nominees and continuing to the nominations of Judges Roberts and Alito to the High Court. Hearings were never held, filibusters were threatened, and reputations were tarnished. In such a climate, it is difficult to have reasoned discussion of the issues. If past history is any guide, we can expect Democrats on the Senate Judiciary Committee will fully support Judge Sotomayor. It will fall to Republicans, therefore to draw out both the judicial and the constitutional philosophy of the nominee.
And they will have much to work with. Not only has Judge Sotomayor made what can only be called reckless statements about the role that race and gender does and should play in judicial decisionmaking, but many of her decisions bring that out. Then too there are cases that may give some “Red State” Democrats pause, like the per curiam decision last January of the Second Circuit panel on which Judge Sotomayor sat, which held that the Second Amendment’s right to keep and bear arms does not apply against the states. Throw in the likely challenges ahead to President Obama’s sweeping assertions of power over the economy, and there is more than enough to keep Senators busy as they carry out their responsibilities to advise and consent.
Still, it is Republicans especially who will be tested by these hearings—tested to see what, if anything, they stand for.
Roger Pilon is the Director of the Center for Constitutional Studies at the Cato Institute.