John, I was reading your article on bipartisanship and the health care bill and thinking about how the same questions apply to Sotomayor. How many votes will the president get for his Supreme Court nominee, when all this jabber is said and done, and in what ways does it matter?
Before the hearing, there was talk of the White House hoping for 70 or more Senate votes for confirmation. (I didn’t understand why the Obama folks were setting their sights that high publicly, because it seems to set them up for some sense of failure even as they win. What am I missing here?) Now that Sotomayor has run most of the gantlet without tripping herself up, I wonder whether she’ll pick off more than the low-hanging Republican fruit, such as Maine gals Olympia Snowe and Susan Collins or Florida gent Mel Martinez. Lindsay Graham seemed on his way to a “yes” vote this morning when he ended one more trip down Wise Latina lane by saying he agreed with Sotomayor that her life’s work demonstrates that she doesn’t actually decide cases through a racial prism.
Could Sotomayor win over other Republicans on the committee? I’d assume the most important factor for the GOP senators is the same as the day Sotomayor was nominated: She’d be the first Latino justice. Do they want to stand in the way of that history, given the importance of the growing Hispanic demographic? But is there a chance that the Republicans will close ranks as a show of strength, as they did on the stimulus bill?
On the legal right, there has been gloating that Sotomayor has backed so far away from articulating any shining liberal vision of the law. Bloggers on the National Review’s The Corner say this will make it harder for Obama to appoint someone who will say that the Constitution is living and breathing and changing rather than “immutable” except for the amendments, as Sotomayor did. I’d like to shrug this off, as Mark Tushnet does on Balkinization, pointing out that anthropologists might be better positioned to interpret these ritualistic hearings than legal commentators. “We don’t really think that it’s even appropriate to ask whether a statement made during a ritual is ‘accurate’ or ‘true,’ ” Tushnet writes. “We ask, ‘What’s the point of saying this rather than that at this particular point in the ritual?’ “
John and Dahlia, what do you think? Are Sotomayor’s ritualistic bland answers boxing Obama in for next time? Or will normal political calculations, like the party breakdown in the Senate and which justice is retiring, matter more when the next vacancy comes up?