The XX Factor

The Sotomayor Confirmation and the Gates Arrest

The Senate Judiciary Committee voted in support of Judge Sonia Sotomayor this morning almost entirely along partisan lines-13 to 6, with Sen. Lindsey Graham of South Carolina the only Republican in favor. Sotomayor would be the first Hispanic Supreme Court justice. She made it through her hearings without the “meltdown” that Graham said would be needed to stop her confirmation, and also without giving Republicans any additional ammunition to oppose her. Yet today’s “no” voters included John Cornyn of Texas, who chairs the National Republican Senatorial Committee and so presumably thinks about the long-term national health of his party, and comes from a state that is 36 percent Hispanic , and Jon Kyl of Arizona, which is almost 30 percent Hispanic . The GOP stance leaves the party without an answer to this headline in Politico: ” Democrats have huge day with Hispanics .”

Why don’t the Republicans seem to care? Three reasons: They are playing to their base. Or, ideological doubts about a future justice increasingly are viewed as a legitimate reason to vote no on both sides of the aisle. And a third, wild-card possibility: The Sotomayor nomination hasn’t captured the nation’s imagination the way the arrest of Harvard professor Henry Louis Gates Jr. did last week. And so Republicans decided, rightly or wrongly, that they could oppose her without self-destructing.

With a handful of exceptions so far , Republicans are opposing Sotomayor despite poll numbers showing that 58 percent of Americans polled last week said Sotomayor should be confirmed, including 40 percent of conservatives, 60 percent of independents, and 65 percent of moderates. The key number for the Republican committee members, apparently, was that only 28 percent of Republicans supported her, with 57 percent opposed-up 14 points from the month before the hearings. “I don’t think Hispanics were his intended audience,” said Brent Wilkes , executive director of the Hispanic organization LULAC, about Cornyn’s “no” vote.

You could hear the ideological rumble against Sotomayor in nearly every Republican statement today. Sen. Jeff Sessions launched the GOP criticism by citing Sotomayor’s ruling against the white New Haven firefighters who sued the city for reverse discrimination, and by attacking her record in gun cases. “I think she got the constitution wrong,” he said of one of her Second Amendment rulings. “She gave short shift to fundamental constitutional rights,” Sen. Orrin Hatch of Utah piled on. Some Democrats-most famously Barack Obama-voted against Chief Justice John Roberts and Justice Samuel Alito based on the same philosophy of opposition. Less deference to the president, and more attention to how judges are likely to rule when they get to the high bench. Sen. Charles Schumer smoked out ” judging by ideology ” back in 2001 and tried to articulate a standard for it.

Today only Lindsey Graham of South Carolina harked back to a previous era of usually honoring a president’s selection. “I am deciding to vote for a woman I would not have chosen,” Graham said, citing Sotomayor’s well qualified rating from the American Bar Association and praising her character. “When I went back to what we used to do around here,” Graham said, he decided to support a future justice who he saw as to the left but “in the mainstream.” He warned against setting a standard “where people aspiring to be a judge … will never take on a cause”-a nervousness that law students thinking about their future aspirations are already expressing .

From the moment Sotomayor was chosen, she and the White House have assiduously followed a script designed to usher her through with as little controversy as possible. If there was a spontaneous moment in the entire choreographed ritual, I missed it. This was supposed to get her confirmed with as many votes as possible. The White House talked about clearing 70. Now that looks unlikely. From which you might conclude that a script can take you only so far. Or that in this Congress, a moderate pick for the Court will fare only marginally better, votes-wise, than an overtly liberal one.

The Gates arrest, on the other hand, was the opposite of scripted. It’s been all about improvisation, for better or worse, from the moment Sergeant James Crowley knocked on Gates’ Cambridge door through Obama’s initial comments last Wednesday, when he said the police had “acted stupidly” in making the arrest. And so we’re all talking about it, debating what happened and what if anything the incident says about race relations. And we’re trying on multiple lens of analysis: The power of the police. The privilege of a Harvard professor, whatever his race. The tendency of law enforcement to presume the guilt of black men. The hoary legal principle that a man’s home is his castle . They all come into play. And they’re far more riveting than the strait jacket of a confirmation process we’ve boxed ourselves into.

Photograph of Sonia Sotomayor by Karen Blier/AFP/Getty Images.