The Politics of the Sotomayor Nomination

Kevin Drum observes:

On Friday it looked as though the conservative movement was suffering from a personality disorder. The insane half wanted to brand Sonia Sotomayor as a dull-witted affirmative action hire whose seething racist bitterness would soon turn the Supreme Court into a cesspool of radical retribution against whitey. The adult half thought that although she was obviously well qualified, her generally liberal record ought to be challenged and her judicial philosophy debated. Which side would carry the day?

It's starting to look like we've got an answer. Republican senators have been fairly restrained up until now, but by Sunday they were starting to defect en masse to the insane wing of the party:

Several of those same GOP senators said Sunday that they would now make race a focus of the Sotomayor nomination fight — and they were far less eager to criticize conservatives such as Rush Limbaugh and Newt Gingrich for their racially tinged critiques.

Fanning out across network television talk shows, the senators in essence pledged to ask a fundamental question: Can a woman who says her views are shaped by her Puerto Rican heritage and humble beginnings make fair decisions when it comes to all races and social classes?

This is a really bad idea on any number of levels. In terms of power politics, it easily could further poison GOP brand name among Hispanic voters. But what part of the base -- except maybe angry white male bigots over 50 -- does it motivate? An unattractive part of the base, at best, and one that is dying out. For the GOP to rebuild, it is going to have to undertake outreach of minorities and Millenials, the latter of whom are pretty laid about about race.

Second, the evidence simply doesn't support the claim that Sotomayor will be unfair in deciding race-related claims. SCOTUS blogger Tom Goldstein has reviewed every single one of Sotomayor's decisions in this area. He reports that:

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals. 

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions.  Of the 10 cases favoring claims of discrimination, 9 were unanimous.  (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.)  Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge.  In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.  So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1. ...

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

As Drum observes, citing Goldstein's analysis:

Absurd, yes.  But that won't stop the screamers.  Nothing ever does.

Sadly, no. Unfortunately, with the GOP senate caucus apparently taking their marching orders from the talk radio crowd, the result is likely to be, as Steven Taylor predicted of the similar GOP arguments about Sotomayor benefiting from affirmative action:

If anything it a) does nothing for the Reps arguments about the Court itself, b) makes them look petty, and c) helps to alienate future voters.

Really, what is the point here of bringing up affirmative action? It seems to me that the net effect is to make affirmative action look good, Republicans to look bad, and for Sotomayor’s nomination to be utterly unaffected. This is the very trifecta of poor politics.

If Taylor's right, and I think he is, the decision to fight Sotomayor on these issues is especially unwise because it weakens the case to be made if Obama's next nominee is a real radical on these issues. Voters may tune out the GOP if it cries wolf every time.

Comments

[sam]

The short version, via Will Wilkinson:

"...I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons. "

[wj]

I'm still waiting for one of those who are proclaiming that Ms. Sotomayor will make race-based judgments to explain this: In Ricci, the one Hispanic involved was on the side that she ruled against. Seems like an odd track record for someone whose judicial actions are driven by her race....