Green Room

Why The Smart Money’s on Sotomayor

posted at 8:45 am on May 4, 2009 by

Sun Tzu had this to say regarding tactical considerations:

The good fighters of old first put themselves beyond the possibility of defeat, and then waited for an opportunity of defeating the enemy.

After the Cabinet fiasco, President Obama needs to score an easy confirmation somewhere.  It is pure folly to just expect Obama to beclown himself in a Supreme court nomination process, given his Cabinet woes and his alleged reputation as a legal scholar (which is also at stake here).  I just don’t think that this is the Supreme Court vacancy with which Obama recklessly attempts an exotic pick.  

Moving forward, I expect the operating word here to be “confirmability”.  As Legal Insurrection explained, 60 votes in the Senate are worth a bucket of warm spit if you can’t get your appointee out of committee (hey, Benedict Arlen finally came through for the GOP, but I digress).  Thus, I don’t expect a galvanizing pick in the mold of a Koh or a Kagan.  In terms of sheer confirmability,  Sonia Sotomayor is the only candidate a with a clear, filibuster-proof path…and here’s why.  

In order to break down the “Filibuster in Committee” strategy, we must first take a look at the GOP side of the Senate Judiciary Committee…currently comprised of Hatch, Grassley, Kyl, Sessions, Graham, Cornyn and Coburn.  Of these, Grassley, Kyl, and Sessions voted against Sotomayor’s appointment to the 2nd Circuit, and can be expected to vote “No” now…with Cornyn and Coburn voting “Hell, No”.  This leaves Hatch and Graham.  Hatch then chaired the Judiciary Committee and voted for Sotomayor.  Does anyone see Hatch changing his vote to “No” now that it’s a Supreme Court nomination?  Yeah, me either.  All this time, there’s been this Graham talk when Hatch is the real key.  After all, there should be no mystery about which way Graham is going on this appointment.  Anyone seriously expecting Lindsey “La Raza” McGrahamnesty to stone the first Hispanic Supreme Court appointee at the gate had better put down the crack pipe…right now.  So much for filibustering Sotomayor in Committee.

When Sotomayor’s appointment to the 2nd Circuit finally went before the full Senate, she got Yays from current GOP Senators Collins, Snowe, Bennett, Gregg, Hatch, and Lugar.  Add that plus Graham to 59 Democrats, and you already have 65 votes (Compared to 68 in 1998.  Roll call here).  So much for a filibuster on the full Senate floor.

Realistically, the only play the GOP has here is to endorse Sotomayor.  Say Graham comes out for Sotomayor.  Two things would happen.  First, such an endorsement would preemptively shut down the grievance machine before it even has a chance to warm up.  Second, GOP support would force the Left to reflexively push harder for one of the academic ideologues; thus forcing Obama to referee a left-wing interest group battle royal…which Sotomayor wins anyway lest The One risk cutting into that 67%.  

Barring an exotic pick born solely out of Obamesque “I Won” hubris, I fully expect that Sonia Sotomayor will be named as the next Supreme Court appointee.  I can’t see President Obama passing on the opportunity to appoint a historic “first” to the bench, and Sotomayor has enough of the treasured “empathy” Obama is seeking.  I concur with Allahpundit’s assessment that she may be the most centrish-ish nominee to come from The One.  I’d bet anyone a cup of office coffee that the White House has already collected Sotomayor’s signature on a Form 4506.  Barring a black swan, this appointment’s a done deal.  The only thing left to do is to see how the GOP plays it, and to pray for the continued health of the remaining Justices. 

Update: Sessions is the next GOP Ranking Member on the Senate Judiciary Committee.  I’d be more excited about this, but it’s more of a placeholder thing until the 112th Congress is sworn in…after which, they play musical chairs.  Then it’s Grassley.  Both voted No on Sotomayor, FWIW. 




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I don’t know, Kid. Yesterday on CNN there was a male, black radio personality (I didn’t catch his name in the 1 minute I watched) who made it pretty clear that the choice had to be a black woman.

andycanuck on May 4, 2009 at 10:26 AM


She is of P.R. decent. I think she would be a interesting person to think about.

upinak on May 4, 2009 at 12:05 PM

After reading that TNR piece linked in the Headlines today, I’m all for Sotomayor. She’s an affirmative-action pick and a relative lightweight. She won’t leave a mark on the Court, but she’ll make all the bean-counters happy that we have another woman and a Hispanic on the Court. Obama will crow about this and about her humble beginnings in a public housing project. Great theater for him, but it won’t mean anything in terms of what the Court actually does.

Works for me.

rockmom on May 4, 2009 at 12:08 PM

Makes sense. Still, he’ll get two more picks in the next year or two. Ruth Bader Ginsburg is quite ill and John Paul Stevens is about 746 years old.

Mr. D on May 4, 2009 at 12:08 PM

We really need a Latina in the supreme court so that it’s balanced enough to lead to decisions that will prevent people from hiring based on things like race and gender.

Daggett on May 4, 2009 at 12:13 PM

I agree with rockmom – Souter did a lot less damage than he could have, because the other justices could clearly care less what he thought. Sotomayor is 1) abrasive and 2) an intellectual lightweight; so is likely to be similarly treated.

Obama should be encouraged to make diversity picks of candidates who would never be considered for the Court if they weren’t checking the right affirmative-action boxes. Incompetence is our friend.

Realist on May 4, 2009 at 12:13 PM

who made it pretty clear that the choice had to be a black woman.

andycanuck on May 4, 2009 at 10:26 AM

Hispanics will pretty soon outnumber blacks in this country. Assuming they don’t already.

MarkTheGreat on May 4, 2009 at 12:29 PM

andycanuck on May 4, 2009 at 10:26 AM

Does she have 65 votes?

Kid from Brooklyn on May 4, 2009 at 12:39 PM

While you make a very compelling argument, it seems that the “flavor of the month” comes and goes quite quickly for this and other political appointments. The VP sweepstakes every four years is a perfect example of this.

I am persuaded by your argument, but until I see the appointment being made, I’m not “all in” on your pick.

asc85 on May 4, 2009 at 1:01 PM

This post advocates silly, pragmatic gamesmanship. AP must love it.

JDPerren on May 4, 2009 at 1:11 PM

over at ACE, they are laughing about this woman saying she doesn’t have the intellectual “heft” of Roberts.

kelley in virginia on May 4, 2009 at 2:10 PM

We really need a Latina in the supreme court so that it’s balanced enough to lead to decisions that will prevent people from hiring based on things like race and gender.

Daggett on May 4, 2009 at 12:13 PM


misterpeasea on May 4, 2009 at 2:31 PM

Ricci v. DeStefano may throw a pretty big kink into this analysis. I hope Senate Republicans will pin down her role in that travesty, whatever the ultimate outcome. I also hope that Sessions will be in the majority chair, because I believe he’ll be able to make a far clearer case for conservative adjudication than Grassley ever could, and that may be the most we can hope for here.

Sotomayor certainly satisfies Obama’s empathy profile and apparently shares his view of law as an “instrument” of social justice. The ideological divide couldn’t be more stark between those who agree and those who believe the mandate of the Supreme Court is to interpret existing law where underlying legislative intentions are not clear, and to determine where the Constitution trumps legislation altogether. Alas, the quality of her legal thinking matters a lot less than her vote once she’s on the bench. So it sounds like she’s too sure of her own opinions to consider what her collegial peers have to say.

Obama didn’t hesitate to buly his full blown legistlative agenda into being right out of the starting gate, despite the headwind of massive deficits.The idea that he would push the nomination of his ideological twin down the road, in preference for an easy confirmation. He’s already got an easy confirmation. The only thing that might make him think twice, would be an onslaught of negative press before he sends her to the Senate. That’s why they’ve put Sotomayor’s name out there so fast, and given the astroturfers their marching orders.

Read the first clutch of comments from “lawyers” on Jeffrey Rosen’s piece at TNR, if you think the White House doesn’t care about the pre-nomination chatter. Columns like this one are music to their ears, because if Obama can declare a bipartisan triumph on top of seating his ideological favorite, it will be having his cake and eating it too.

JM Hanes on May 4, 2009 at 2:47 PM

Should have proofed that post one last time.

Meant to say that “the idea that he would push the nomination down the road, etc” strikes me as wishful thinking.

JM Hanes on May 4, 2009 at 2:54 PM

I would worry that the White House will pick Sotomayore precisely because of the Ricci decision. They would like nothing better than to provoke a debate on race with a bunch of white Republican Senators. Great way to keep the black folks on the plantation.

rockmom on May 4, 2009 at 4:53 PM

Count me as another vote in agreement with Kid. Sotomayor is the obvious choice among the heavy favorites. Unless they come up with a dark-horse, this one’s a slam dunk.

It could be worse.

connertown on May 5, 2009 at 1:14 AM

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