MSNBC, NY Times----
(As her Confirmation Hearing neared an end Wednesday, Judge Sonia Sotomayor told the Senate Judiciary Committee that she never discussed the subject of abortion with anyone at the White House, and that a fictional judge, Perry Mason, had influenced her as a child. NBC's Pete Williams reports.)
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WASHINGTON - As the two parties skirmish over the Supreme Court nomination of Judge Sonia Sotomayor, some of their rhetorical fire is aimed not at her but at the next justice President Obama may get to pick.
After three days of testimony, Judge Sotomayor appeared to have made no major mistakes that would jeopardize her confirmation in a Senate dominated by Democrats. So both sides are trying to use the Judiciary Committee hearings to define the parameters of an acceptable nomination in case another seat opens up during Mr. Obama’s presidency.
By forcing Judge Sotomayor to retreat from Pres. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.
Liberal activists, by contrast, hope the hearings demonstrate that a Democratic president has nothing to fear from Republicans who have not rattled Judge Sotomayor. If she is confirmed by a commanding vote that includes a number of Republicans, the activists argue, they will have given Mr. Obama more political running room next time to name a more full-throated champion of liberal values.
“Democrats want to draw lines in one place in the sand, and Republicans want to draw lines in another place in the sand,” said Rachel Brand, a former assistant attorney general who helped manage the confirmations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Bigger confrontation looming?
For all sorts of reasons, Mr. Obama’s next nomination fight could easily be a bigger confrontation than this one. At the moment, the president still enjoys strong popular support and is replacing a retiring liberal, Justice David H. Souter, with another liberal. But if his next choice alters the political balance or comes when his poll numbers are down, the battle could become much fiercer.
“It depends on who’s left the court,” said Fred McClure, a former White House official who worked on the confirmations of three Republican-appointed justices. “If the departing justice falls into the middle-to-liberal wing of the court, then I think the president is free to nominate a similar candidate. If on the other hand, the nominee is to replace the middle-to-right wing of the court, then I think he’s got to think differently.”
One lesson the White House has learned is to expect a fight on any nomination, fueling its desire for a strong vote for Judge Sotomayor. White House officials say they hope to generate momentum for the next one, though cautioning that each nomination is unique.
Harder to pick a more Liberal Justice?
Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.
She repudiated the president’s assertion that “what is in a judge’s heart” should influence rulings and rejected the liberal idea that the Constitution is a “living” document whose meaning evolves with society. Instead, she said the Constitution was “immutable” and did not change except by amendment. And she dismissed any role for foreign law in deciding cases, an influence some liberal legal experts argue should be considered.
Louis Michael Seidman, a Georgetown University constitutional law professor, said Judge Sotomayor adopted a “fairy tale” definition of judging that ignores the discretion they have to decide hard cases where the legal materials do not dictate outcomes.
“She reinforced the official ideology, and it makes it that much harder for other judges later on to talk to the American people as if they were adults about what courts actually do and what constitutional law consists of,” Mr. Seidman said.
James R. Copland, director of the Center for Legal Policy at the Manhattan Institute, said it was significant that Judge Sotomayor had endorsed a “traditionalist” view of judging and distanced herself from liberal theories. “That limits somewhat his ability to go far afield from the mainstream public understanding of the law,” Mr. Copland said of the president.
Manuel Miranda, chairman of the Third Branch Conference, a conservative advocacy group, said Judge Sotomayor could make it easier for conservatives to attack future nominees. “She is portraying herself as someone who is bound by the rules that conservatives have been articulating for so many years,” Mr. Miranda said. As a result, if Mr. Obama picks someone with different views, Republicans “now can say, ‘You don’t meet the Sotomayor test.’ ”
Taking the measure of each other:
But Nan Aron, president of the liberal Alliance for Justice, said that if Judge Sotomayor ended up being confirmed by a significant margin, it would represent a “strong vote of confidence in President Obama’s judicial picks in the future” at both the appeals court and Supreme Court levels.
“Everyone has been saying get a good vote, and this administration will have a firm foundation and a good record to move forward on pushing back against the ultraconservative hold that currently exists on this court,” Ms. Aron said.
Either way, each side has taken the measure of the other and will emerge from this nomination with ammunition for the next.
“There were some rigorous questions, but it wasn’t Armageddon,” said Kenneth M. Duberstein, who was Ronald Reagan’s White House chief of staff and later managed the confirmations of Justices Souter and Clarence Thomas. “That’s left for another day and another nomination.”
Sources: NY Times, MSNBC, Whitehouse.gov
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