Straight From the Playbooks

Endurance is clearly Sonia Sotomayor’s first challenge in her confirmation hearings. Three hours of being spoken at, without showing emotion, is a test that few humans could endure. She looks like someone hearing a very long story from a person they don’t know well about the sudden loss of a family pet.

Of course judges have a lot of practice reacting without emotion. But at least the lawyers in their courtrooms are speaking to the facts of the case. A lot of this talk from senators has been about characters not in evidence. Republicans talk about President Obama and the standards he applied to Justice Samuel Alito and Chief Justice John Roberts. They’ve also talked about Miguel Estrada, who never made it to the U.S. Court of Appeals for D.C. Democrats remind the audience how Roberts said he was going to call balls and strikes as a judge, then say that he turned into an activist once he became chief justice.

Both sides benefit from the narrative of Supreme Court as liberating crazy house where judges finally get to embrace the secret activism they’ve been kindling secretly in their hearts. Democrats say that’s what Roberts did, and Republicans are saying that’s what they fear Sotomayor will do. Sessions put it this way: “On the Supreme Court … checks on judicial power will be removed, and the judge’s philosophy will be allowed to reach full bloom.”

Round and round we go. Each side uses the other’s arguments from previous confirmations. Orrin Hatch spoke at length about Obama’s standard for nominating judges and made a persuasive case for applying those same standards in evaluating Sotomayor. The case won’t stop her nomination, but any Republican wanting to vote against Sotomayor will no doubt quote from Obama extensively and have pretty good political cover. The fact that both sides can so easily trade arguments hardly reassures the public that there are fixed standards at work here.

I’m not that surprised by the GOP line of inquiry. It all seems inbounds to me. Republican senators haven’t gone after Sotomayor’s temperament. Lindsey Graham said he was going to, but didn’t in his opening remarks. That seems an act of momentary reserve. Instead, the GOP has gone after her repeated remarks about a “wise Latina” making better decisions in gender and race discrimination cases, which is a problem for her. It’s also a problem for the White House, which offered a very weak and arguably misleading account of her views on this.

Republicans’ other line of questioning, about whether she represents too much activism on the bench, seems like standard boilerplate. None of this seems like it’s going to scratch the judge. My guess is that once the judge actually gets to speak, she’ll sound in command and precise and look all the better for all the bloviating that came before her. As Graham told her in his opening statement, “Unless you have a complete meltdown, you’re going to be confirmed.”