Sotomayor likely to get gentle scrutiny from Congress

McClatchy NewspapersMay 26, 2009 

WASHINGTON — The congressional fate of Supreme Court nominee Sonia Sotomayor rests squarely with Democrats — who were enthusiastic about her nomination Tuesday — because Republicans lack the clout to stop her and could face political consequences if they try.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said that lawmakers were "committed to ensuring the next justice is seated before the court's term begins in October," and history shows there's plenty of time for hearings and debate on an uncontroversial nominee.

Democrats also issued a warning of sorts that opposing Sotomayor could reverberate politically: "Given Judge Sotomayor's track record of excellence and moderation — and her life story — it's going to be difficult for any senator, Republican or Democrat, to vote against her," predicted Sen. Charles Schumer, D-N.Y., a senior committee member.

Republicans wouldn't go that far, remaining circumspect about the judge's prospects.

The Republicans face a dilemma, however: Hispanics have been an important swing vote in national elections in recent years, and Republicans are already under fire in many quarters for their tough stand on illegal immigration. An estimated 44 percent of the nation's Latino voters backed President George W. Bush in 2004, but only an estimated one-third backed Republican presidential nominee John McCain last year.

"Senate Republicans will treat Judge Sotomayor fairly," said Senate Republican leader Mitch McConnell of Kentucky. "But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law evenhandedly, despite their own feelings or personal or political preferences."

The Republican Party's strongest weapon is the filibuster, and Republicans won't rule one out. With only 40 Republican senators and 60 votes needed to limit debate, however, their prospects aren't good.

Sen. Jeff Sessions of Alabama, the Senate Judiciary Committee's top Republican, has been unenthusiastic about the tactic.

"I've not favored a filibuster," he said, though he added that it could be used in "extraordinary circumstances."

A key moderate Republican, Sen. Susan Collins of Maine, signaled Tuesday that she's open to confirming Sotomayor, citing her "compelling life story and long record of judicial service."

A president's nominees rarely stumble in a Senate that his party controls. In October 2005, when Republicans had 55 Senate seats, Bush White House Counsel Harriet Miers withdrew her name after members of both parties questioned her qualifications. However, it's been 41 years since senators successfully filibustered a nominee.

Abe Fortas withdrew as Lyndon Johnson's nominee in 1968 — the only time a filibuster against a Supreme Court nominee was successful — but Johnson wasn't running for re-election that year, and his approval numbers were dismal. Democrats had 64 senators at the time.

Sotomayor's first hurdle is winning approval from the Judiciary Committee, which has 12 Democrats and seven Republicans.

The process for an uncontroversial nominee usually takes about 60 to 90 days, meaning that the hearings could be in July. The Senate might vote before its summer recess, which is scheduled to begin Aug. 7.

After Sessions, the two senior Republicans on the Judiciary Committee are Orrin Hatch of Utah and Charles Grassley of Iowa, both of whom have histories of voting for Democratic nominees as long as they think they're fair and qualified.

Grassley said Tuesday that his first reaction was positive. "A president is entitled to nominate who he wants to nominate," he said. "She does have a record for our review but, obviously, I'm just now today starting to look at that record and will be consulting with my staff on the key points that I ought to be reading about her there."

The three committee members who could stir controversy are Jon Kyl of Arizona, Tom Coburn of Oklahoma and John Cornyn of Texas. All are strong conservatives who frequently challenged Obama administration Cabinet nominees earlier this year, when most of their Republican colleagues were willing to approve them.

Kyl, Sessions and Grassley were among the 29 Republicans who voted against Sotomayor's nomination to the 2nd U.S. Circuit Court of Appeals in 1998.

Cornyn heads the party's Senate re-election committee, and he was judicious Tuesday in his comments.

"It is imperative that my colleagues and members of the media do not prejudge or pre-confirm Ms. Sotomayor," he said. "She must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings and preferences."

Other Republicans echoed that thought, saying that they'll look thoroughly at the record and stay away, at least for the moment, from using political catchphrases to describe Sotomayor.

Sessions said in an interview May 17 that he'd apply no litmus tests. When he was asked recently whether support for abortion rights would cause him to oppose a nominee, he said: "Could I support a pro-abortion nominee? The answer is yes," he said. " I think it's a great country. I don't expect nominees to come to the bench who do not have views on issues."

Leahy had a warning of sorts for Republicans, saying that he thought Sotomayor would be "in the mold of (retiring Justice David) Souter, who understands the real-world impact of the court's decisions, rather than the mold of the conservative activists who second-guess Congress and who through judicial extremism undercut laws meant to protect Americans from discrimination in their jobs, their access to health care and education, and their privacy from an overreaching government."

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