Everything you need to know about Sonia Sotomayor's upcoming hearings.
Everything you need to know about Sonia Sotomayor's upcoming hearings.
The law, lawyers, and the court.
July 11 2009 7:55 AM

Confirmation in 60 Seconds

Everything you need to know about Sonia Sotomayor's upcoming hearings.

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Hovering like a bad smell over these un-questions and nonanswers, there will be unspoken bitterness and resentment about "identity politics" in America. Specifically, Republicans on the committee will grouse that as a Latina woman, Judge Sotomayor suffers from an excess of identity and a dangerous surplus of politics. Despite an 18-year judicial record and hundreds of opinions suggesting she's a moderate, technical judge, Sotomayor's critics will attempt to smoke out the raging inner racist/racialist/racial exceptionalist they suspect lurks deep within her. They will do so by asking her about her "wise Latina woman" comment from a 2001 speech at least 16 times over the course of the hearings. (She will say she should have chosen her words better.) They will attempt to get her to hiss and spit like an enraged boa constrictor. (She will be placid and cool.) She will be asked about judicial "empathy." The conversation about empathy and the Constitution will be just as illuminating as the conversation about judicial activism.

Conservative white men on the committee will attempt to understand whether and why she hates conservative white men. They will do so by asking endless variations on the following question: "Did you arrive at your decision in the New Haven firefighters case because you hate white men?" She will assure them she does not, and tell charming stories of the firefighters she has known and the good times they have shared. Frank Ricci will scowl. David Cone will throw a slider high and inside. Al Franken will find a way to work "Learned Hand" into the conversation without once cracking a smile.


White Republican men on the committee will then probe her involvement with an all-women's club and a Puerto Rican legal advocacy group that have done nothing wrong, in an effort to show that Judge Sotomayor's female-ness and Puerto Rican-ness have metastasized into a form of constitutional brain fever that will, as Sen. Jeff Sessions describes it, "infect" all of her jurisprudence. And while they grouse and groan about Judge Sotomayor's dangerous overidentification with poor and minority litigants, Republicans will grouse and groan that they are being painted as racists for even raising these questions. From the first to the last day of these hearings, her opponents will splutter that it's Sotomayor's racism that's making them sound like such darn racists.

There is little doubt that Sotomayor will be handily confirmed. Her judicial record is unremarkable and her life story extraordinary. And this is the paradox of the confirmation shuffle: We learn too much that is trivial and not enough that is important. The whole process is constructed around the fiction that nominees are hideous monsters in the eyes of half of the judiciary committee. But calling someone an unintelligent, racist bully under the bright lights of C-SPAN leaves scars the nominee may never forgive nor forget. This confirmation game is insufficiently serious to vet a lifetime appointment to the high court yet serious enough to create lifelong resentments and grudges. (Think of Clarence Thomas.) We will learn again this week why confirmation hearings are both surreal and far too real. The court, and the country, might be better served by a bracing dance-off and a viewer poll.

A version of this piece appeared in Newsweek.

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