Yes, they should.
Not because she isn’t qualified – by almost all accounts, she is very well qualified – smart, well versed in the law, and possessing a solid judicial temperament. Her opinions are, according to those who have read them, meticulously drafted. The American Bar Association, which historically takes on the task of evaluating nominees’ qualifications for the federal courts, gave Sotomayor their highest rating. This comes after the ABA committee reviewed all the court rulings of which she has been a part.
Nor is it the case that she committed major gaffes during the confirmation hearings before the Judiciary Committee. Indeed, those of you who listened or watched the hearings were likely struck, as I was, by the equanimity with which she responded to her questioners, even when they pressed her. She avoided – as all nominees do now – tipping her hand on any of the controversial issues, such as abortion, and was quick to distance herself from Obama’s justification for voting against John Roberts’ nomination to the court, saying she didn’t agree with Obama’s emphasis on empathy. She also essentially disavowed her controversial comments regarding the relative wisdom of Latinas vs. white males. All in all, it was a stellar performance that provided almost no ammunition for her critics.
So, why should Republicans vote against her? For the same reason that Democrats should support her. Because she will almost certainly constitute a reliable liberal vote – most likely the most liberal vote, along with Ruth Bader Ginsburg – on the Court. Many of you will recall that, during his confirmation hearing, John Roberts famously used a baseball metaphor to describe a justice’s role, saying: “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” What Roberts did not say – but which anyone who has played or watched the game knows – is that strike zones vary considerably from umpire to umpire. And Sotomayor’s strike zone is very likely to tilt to the Left.
How can we be sure? There are two pieces of evidence. First, those who have studied her judicial rulings (and I have not in any depth) tell me that, on cases in which there is room for discretion in her rulings, she leans consistently left. This is not always true; on criminal justice cases, for example, she tends to be more conservative. But on the whole, her jurisprudence can best be described as liberal.
The second bit of evidence comes from research done by political scientists Jeff Segal and Albert Cover, who devised a test, based on newspaper editorials, to predict how nominees will rule once they are on the Court. Essentially, the Segal-Cover system uses newspaper editorials to place a nominee on an ideological scale ranging from 0 – most conservative – to 1, most liberal. Based on his analysis, Segal says Sotomayor scores near Ginsburg’s 0.68. That would make her, along with Ginsburg, the most liberal judge on what is a predominantly conservative court. (For comparative purposes, Breyer scores a .48, and Stevens is at .25. As noted below, Stevens has moved Left in his years on the Court, so that this score no longer accurately characterizes his vote. On the conservative end, Thomas scores .16, Roberts .12, Alito .10, and Scalia is a O! Kennedy – the swing voter who holds the Court’s balance of power, is scored .37. Souter scored .33, so Sotomayor will, if confirmed, move the Court Left.
Of course, the Segal-Cover score is not foolproof, since it is based on editorials written before the nominee is confirmed. Justices – see David Souter! – sometimes turn out to be different than what they seemed. (George Bush the First nominated Souter in the belief that he was a conservative, only to see him join Harry Blackmun and John Paul Stevens as a consistent member of the court’s liberal bloc.) Other justices – see Stevens – gradually changed their voting tendencies – in Stevens’ case becoming more liberal – the longer they stayed on the bench.
Nonetheless, the Segal-Cover system has proved to be an effective predictor of nominees’ voting tendencies on the bench. (Segal indicates that there is a correlation of .79 between the ideological score and justices’ subsequent vote on the bench. A perfect correlation would be 1, so this is a pretty effective predictor.) And it suggests that Sotomayor will tend to vote against Republican’s core values.
But, some of you will undoubtedly object, don’t Republicans risk losing the Latino vote if they vote against Sotomayor? Keep in mind that Latino voters are disproportionately located in a few states: California, Florida, Texas, Arizona and Illinois. Most Republican senators have very little to worry about in terms of a Latino backlash, although some – think Mel Martinez in Florida, undoubtedly will support Sotomayor. But for most Republicans who have few Latino voters, the threat of a Latino reaction to a no vote on Sotomayor is not something about which they worry.
There is an additional consideration here: it is in Republicans’ interest to lay down a marker, in anticipation of a later court fight if, and when, either Stevens and/or Ginsburg (who is in poor health) step down. It makes that fight easier if Republicans show their resolve now, in this first opportunity to signal their willingness to oppose Obama’s nominees.
Based on this, I’ve set the Over/Under on the Republican votes against Sotomayor at 31. It is time to hand out another “It’s the Fundamentals, Stupid” t-shirt. We know Sotomayor will be confirmed – but by what margin? Send me your predictions – otherwise I’ll be forced to go back to seclusion to work on the book! And there’s so much to blog about – what was Palin thinking (and who are the Republican frontrunners for 2012)? Will health care reform pass – in my lifetime? Why are Obama’s poll numbers dropping, and what does it mean?
Tell me whether you are taking the over or the under, and – for those with a spine – what the final Republican opposition will be.
For background information, here is the vote for the last six Supreme Court justices:
Nominee….Nominated By….Roll Call…Opposing Party Yea Votes
Alito………….Bush 43…………58-42………….4 Dems
Roberts……..Bush 43…………78-22………….22 Dems
Thomas………Bush 41………..52-48………….11 Dems (1 Repub opposed)
Souter………..Bush 41………..90-9……………46 Dems
And here is a chart, based on data compiled by Charles Franklin, showing the opposition to Supreme Court nominees dating back to the 1950’s (Note: it doesn’t include the Alito vote).
Voting starts now!