ConfirmThem

If the nominee was a white male with the same background and statements, would you vote for his confirmation?

For any of them who say they give deference to the President's choice as long as qualified, elections matter, blah blah blah, we'll never know how much they chickened out because she's Latina.

If nothing else, they should delay in order to properly review her record. She's supposed to get confirmed in way less time than Alito or Roberts. Let her get confirmed on October 1st, sworn in on October 2nd, and seated on October 5th.

for this thread, Andrew, as well as the reprise of some of what's been written before.

I understand the ironic nature of this site and the nomination before us, but it will be helpful to provide information, analysis, and evaluation. As well as vent when need be! In a civil sort of way, of course.

I think the Republicans did a good job at both pointing out Sotomayor's real judicial philosophy by highlighting her speeches and demonstrating the Democrats' present hypocrisy in lauding Sotomayor's nomination while earlier disparaging those of Janice Rogers Brown and Miguel Estrada.

Although I think Lindsay Graham can at times be too much of a political opportunist to be counted on ideologically, his performance was by far the best today. His candor can be refreshing. I loved his comment that short of a personal meltdown, Sotomayor's confirmation was assured. Maybe not a comforting thought, but a truthful one.

As far as the nominee goes, Sotomayor appeared lackluster at best. She displayed no charm or charisma today, and her introductory comments were bland and perfunctory, not inspired. While Roberts amazed with us with his brilliant turn of phrase and Alito carried the day with a robust earnestness, Sotomayor came across as bored or worse. At times, her expression was even sour.

It will be interesting to see how Sotomayor will handle Republican questions in the next few days. Will she remain somewhat bored and disdainful? Will she flash charm and humor? Or will she reveal the fiery combativeness Rosen attributed to her? Under any circumstances, though, like Graham, I think she will be confirmed.

It is my deep wish that the Senate Republicans do not under any circumstance allow Sotomayor to be confirmed with more than the 67 votes she received for her appellate judgeship in 1998. It would be a disgrace if she receives anywhere near the 78 votes tallied for John Roberts in 2005. The Republicans need to start playing hardball. I agree with the notion that Barack Obama and the Senate Democrats of the 109th Congress forever destroyed the concept of deference to a president's judicial choices. There should be no more Ruth Bader Ginsburgs getting confirmed by votes of 97-3.

I think it is pretty clear at this point that Sotomayor will get the Republican votes of Hatch and Graham. She already has the votes of Collins and Snowe of Maine. She will also likely get the vote of Martinez of Florida.

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm...

In 1998, the following Republicans now in the present Senate voted to confirm Sotomayor to the Second Circuit:
Lugar - Indiana
Collins and Snowe - Maine
Cochran - Mississippi
Gregg- New Hampshire
Bennett and Hatch - Utah

Add Graham to that list (he said today that he is leaning toward presidential deference), and you already have a 68-32 confirmation vote. Although Kay Bailey Hutchinson of Texas voted against Sotomayor as an appeals court judge, I wonder if she will vote against her now (especially if Hutchinson plans on running for Governor of Texas). I also wonder if Lisa Murkowski will vote against a woman her father voted for in 1998.

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/13/AR200907...

"Among those [Republicans] who some court watchers say could make an early announcement [in favor of Sotomayor] are Sen. Mel Martinez of Florida, the only Latino Republican in the chamber, and Sens. Richard G. Lugar of Indiana and Susan Collins and Olympia J. Snowe of Maine."

http://www.slate.com/id/2222805/pagenum/2

"I confess that despite the fact that it lacked anything memorable, beyond the emotion, I wasn't disappointed by Judge Sotomayor's terse, bare-bones opening statement today—a statement in which she did little more than lay out her autobiography and pledge "fidelity to the law." Yes, it was dispassionate. That's probably a good thing when your opponents believe you're too excitable. Yes, it was spare. That's a good thing when your critics celebrate minimalism and humility above all things. Given how often Sotomayor was accused of being hugely, inappropriately larger-than-life today, going tiny may have been precisely the right way for her to play it."

Soto has appeared to have plenty of paper in front of her from the beginning, as she mumbled her opening statement from a prpared text. I recall JGR never had a sheet in front of him, and likely not Alito either, tho I could be misremembering. What about Breyer & RBG?

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Having read through some of Soto's writings, speeches, and opinions, my only wish would be that she was more liberal than she is. The Supreme Court is at its best when strong liberals and strong conservatives debate. I guess we'll no longer get such "radicals" on the bench, it's centrists with leanings from here on out. Gone are the days when true debate raged inside those hallowed halls.

The democrats softball questions are bordering beyond absurd at this point. Sure, the GOP did the same thing to some extent, but there were only 10 of them as opposed to 12.

Chairman Specter asks alito about Griswold, Casey, and Roe.

Chairman Leahy drops this gem:

LEAHY: Well, and isn't that what -- you've been on the bench for 17 years. Have you set your goal to be fair and show integrity, based on the law?

They've talked more about John Roberts than Sotomayor.

Could someone ask McCain what he thinks now that the Dems are going to ram health care through the Senate with 51 votes? He was not even willing to approve a COA nominee with 51 votes. One side is fighting with rocks and the other with nuclear weapons. This is the ultimate nuclear option.

http://www.nytimes.com/2009/07/16/us/politics/16assess.html?hp

"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."

"By forcing Judge Sotomayor to retreat from Mr. 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.

"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."

Given that:
- Sotomayor lied repeatedly during her testimony, sounding more like Roberts or Alito than what her record and speeches demonstrate.
- Democrats have the votes to confirm her even if every Republican opposed her.
- Several Republicans, including supposedly conservative John Cornyn, are apparently planning to vote to confirm.
--- Instead of "throwing down the gauntlet" before the next nomination, it seems to me it has proven that he can choose anybody he darn well pleases and they will be confirmed. Isn't the only thing that could impair his ability to name another ultraliberal is if it happens in 2011 and the Dems get slaughtered at the polls in 2010? I don't buy the "losing the battle but winning the war" argument.

bk

I know you addressed your question to BoBo (whose response I eagerly await, as does everyone else here) -- but I hope you won't mind if I jump in with a few thoughts of my own (I've been largely silent during the Sotomayor hearings):

--I agree with you, bk -- I don't for an instant buy the "losing the battle but winning the war" argument. It's a line of reasoning that's been concocted recently both by optimistic conservatives (and it's not a bad thing to be an optimistic conservative!) and, strangely enough I think, by the news media. The media love the idea of there being a competition or a contest even when there isn't one (witness Obama vs. Hillary in early 2008), and this argument is one that I think the media have helped to craft over the last 24 hours in order to make it seem like conservatives will get some benefit out of the Sotomayor hearings. I don't see that benefit -- each nomination is a discrete event, and while there can be some rhetorical ties to previous nominations (note all the references to Roberts' hearing this time around), the political realities dictate how things proceed, and nothing else. A future Obama SCOTUS nominee can listen to the phrase "the Sotomayor standard" until he or she is blue in the face, and it won't really make a difference -- if Obama has the votes, nothing else will matter.

--I also agree that Obama can choose anyone he wants for SCOTUS. Yes, his first pick was one who is a little harder to oppose politically from a demographic standpoint, but I think he also is saving any tougher SCOTUS nominations for later. He has a lot on his plate right now, and I just don't think he was willing to expend a lot of political capital this early on, especially since he didn't need to, because he knew he could reap dividends (with Hispanic voters) by picking Sonia. If you look at Obama's executive branch choices, he clearly doesn't have a problem with controversial picks -- while I don't think Dawn Johnsen is as controversial as the opposition has made her out to be, Harold Koh clearly is, and despite all the opposition to him by Ed Whelan and others, Obama and his people went ahead with Koh anyhow.

--As I have said ever since I started commenting here, to control the outcome of judicial nominations, you have to control the Senate. For whatever reason, that argument gets lost among conservatives (well, not by you, bk, but in general) whenever judicial nominations are discussed. Pat Leahy and Harry Reid long have understood it. More conservatives should.

--Sotomayor did indeed lie during her testimony. Having said that, I'm fairly certain that all nominees do; Sotomayor's lies were a little different than other nominees' lies (she does seem to be espousing a different view than the one shown by her record), but I don't think it's anything new. One of these years, it'd be fun to see a no-holds-barred nominee who lays it all out.

--I had not heard that Cornyn will vote to confirm, but I believe it. I predict, though, that Sotomayor gets about 70 votes.

http://www.breitbart.com/article.php?id=D99FKD6G0&show_article=1&catnum=0

It sure makes it sound like Cornyn and especially Graham will vote for her confirmation.

All the nominees testifying fudge to some extent but no less than many of the windbags giving the speeches asking the questions. But Sotomayor seemed to take that to a whole new level, not only contradicting what she had said and done in the past, but also contradicting her own prior testimony!

In general, I think that Sotomayor's odd embrace of the typically conservative view that judges should not use their personal experiences to decide cases definitely makes it much more difficult for Obama to nominate someone who has actively stated contrary views. By explicitly repudiating Obama's empathy standard, she undermines the president's whole judicial nomination selection process. Obama will have a difficult time explaining a second nominee who directly contradicts the views of not only Roberts and Alito, but also Sotomayor.

In specific, though, I recognize that there are two variables which could serve in the future to minimize the damage done to liberal judicial ideology by Sotomayor's slavish adherence to the accepted, conservative-created definition of the appropriate role of a judge. The first variable is the number of Democratic senators when the second vacancy occurs. If Obama has 65 or more Democratic votes to count on, there is no reason for him not to shamelessly and openly contradict Sotomayor. The second variable has to do with the political atmosphere at the time of the second vacancy. One of Obama's reasons for choosing Sotomayor was so that her Supreme Court nomination would not divert attention away from his primary concern, health care reform. If there are no other diverting issues of more importance to Obama, he probably will have no problem nominating a less subtle nominee than Sotomayor.

These two variables seem much more likely to occur not in the 111th Congress, but in the next congress. Because of this, I think if there is a new vacancy next summer, before the 2010 election, the new nominee is likely to be very similar to Sotomayor, probably Wood or Kagan. However, if the vacancy occurs in 2011 and Obama has an even larger backing in the 112th Congress, Obama has no reason not to nominate a flaming liberal like Harold Koh or Pam Karlan.

For what it's worth, I am a little stumped as to why Sotomayor was in general so obsequious to her conservative interrogators. There was no reason for her to sound so much like John Roberts or Samuel Alito. With 60 Democratic votes behind her, she could've been much more politely dismissive of Republican concerns. She did not have to "dress up" her justifications in conservative phraseology. In doing so, she really did damage Democratic attempts to redefine the role of judges.

Actually, I think her presentation will help conservatives in several ways. To begin with, she gave validity to their view on the role of judges by explicitly agreeing with it. That will not only make it harder for Obama to use the empathy standard again in the future, but will force Sotomayor to restrain her natural liberal inclinations when deciding cases in the first few years of her tenure. I think that one of the reasons both Roberts and Alito have been restrained in comparison to Scalia and Thomas in the overturning of prior precedents has to do with a fear on their part of breaking commitments concerning stare decisis made to senators during their confirmation hearings. I think that for the next several years Sotomayor will think twice before blatantly justifying any of her votes with a reference to social justice and identity politics. This will force her to seek accomodation with more conservative values if for no other reason than to preserve the illusion of keeping her promise of maintaining fidelity to the law.

In conclusion, I think Sotomayor is really the best the Republicans could have hoped for under present conditions. She is less ideologically driven and articulate than Diane Wood, and is much less of liberal flamethrower than Jennifer Granholm, Kathleen Sullivan or Pam Karlan. She became an even more attractive candidate by her (probably disingenuous) adoption of conservative terminology in her hearing, which now has restricted (albeit possibly only temporarily) not only her own future judicial behavior but that of Obama himself.

Iam not surprised that any Republican senator from a state with a large Hispanic population would vote to confirm Sotomayor. Early, I mentioned that it was likely that Texas's other senator, Kay Bailey Hutchinson, would also vote to confirm Sotomayor for demographic reasons concerning a possible run as governor of her state.

It is likely that Bennett and Hatch of Utah will vote for her as will Collins and Snowe of Maine, Cochran of Mississippi, Lugar of Indiana and Martinez of Florida. While Graham doesn't have any demographic reason to vote for her, he does apparently have an ideological reason (deference to presidential nominations).

I just don't want Sotomayor to get more than the 78 votes for Roberts in 2005. That would be a travesty. Roberts on credentials alone deserved the vote of every single Democratic senator in the 109th Congress.

bk

One thing I forgot to mention in my comment above -- and which hopefully addresses some of what you just wrote in your response about Sonia's testimony contradicting her previous words -- was captured really well by Michael Gerson here (http://voices.washingtonpost.com/postpartisan/2009/07/the_meaning_of_sot...) about Sotomayor's testimony and what it means. Gerson is right that it made for an uninteresting confirmation process, which is of course what Sotomayor (and Obama) wanted. She did a great job of appropriating conservative language and in the process hijacking the entire hearing. In fact, what she really wound up doing was agreeing with her enemies (so to speak) in order to neutralize them. And it worked. GOP senators were left with really thin gruel. Gerson also is right that the political center of gravity does indeed seem to lie with the Federalist Society -- at least, rhetorically speaking (i.e., when it comes to public rhetoric), and at least, at this point in our nation's history. Finally, Gerson notes that a left-leaning blogger wrote exactly what I think as well -- Sonia said what she needed to say in order to get confirmed (and in order to blunt attacks from her harshest critics). It's a very cynical but sadly accurate assessment of things.

However, I wouldn't automatically assume that the next Obama SCOTUS nominee would follow the path that Sotomayor did (can you really imagine Harold Koh, for example, talking the way Sonia did?). I can't. Elena Kagan? She'd probably fall somewhere between Koh and Soto. Diane Wood? I have no clue. Jennifer Granholm? Leah Ward Sears? Merrick Garland? Cass Sunstein? Janet Napolitano? Who can say.

Don't you think that Roberts and Alito have tried to honor their hearing statements respecting stare decisis? Scalia even called them out in an opinion for overturning a precedent without saying they were. Why would they do that if not to act as if they were serious about at least on the surface respecting stare decisis?

I think Sotomayor has dug herself into the same ditch. She has been so adamant in her hearing about repudiating empathy and identity politics that she will be hard-pressed to initially go against the standard she has created for herself.

From their judicial records, Wood, Garland and Sears appear to be in the same vein as Sotomayor - competent liberal jurists in the mold of Ginsburg and Breyer. Sears is probably more moderate than the other two. Wood and Garland are probably more dangerous for conservatives because both are extremely intelligent (probably more so than Sotomayor) and capable of revitalizing liberal jurisprudence. I don't think Sotomayor is particularly interested in blazing new trails in liberal thought.

Any nonjudge (be it Granholm, Patrick, Koh, Karlan, Napolitano or even Kagan) is dangerous simply because there is no way to really evaluate how they might act as a justice. Sunstein is in the same category, but liberals seem scared that he may actually be a closet conservative due to his stated belief in judicial minimalism.

http://www.law.com/jsp/article.jsp?id=1202432329357

"John Yoo, author of some of the Bush administration's war-on-terror memos, has hired Washington, D.C., lawyer Miguel Estrada to appeal a ruling that allowed an allegedly mistreated detainee's suit against Yoo.

In a court filing last week (.pdf) notifying Northern District of California Judge Jeffrey White of the appeal, Justice Department lawyers who have represented Yoo thus far announced they were stepping aside, and that Yoo would hire private counsel.

Estrada , a Gibson, Dunn & Crutcher partner and former Bush nominee for the U.S. Court of Appeals for the D.C. Circuit, confirmed by e-mail on Thursday that he will be representing Yoo for the appeal.

The Justice Department said it will still pay for Yoo's defense, "as is normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions." In an e-mail, spokeswoman Tracy Schmaler did not describe what that disagreement might be."

I now see that BoBo responded -- twice -- while I was finishing typing my last response. A few quick thoughts:

--No chance that Sonia gets 78 votes. But, there's also no chance that *any* future SCOTUS nominee ever gets 78 votes again, since the process has become so much more polarized than ever before (with far too much advocacy money riding on ideological purity on the part of each party's senators). It'll never happen. The slide has gone pretty steadily downward from Scalia (obviously with Clarence being the big exception). But I'm not sure it's that useful to spend a lot of time obsessing over how many votes she gets anyhow. All she needs is a majority -- anything more than a majority is nice, but it doesn't really change anything whatsoever -- Clarence Thomas is every bit the justice that Ruth Bader Ginsburg is, and yet, she got 45 more Senate votes than he did. In fact, a potential future nominee like Merrick Garland has every bit the credentials that John Roberts had, and I'll buy every commenter on here a steak dinner if Garland is a future nominee *and* gets anywhere near 78 votes. It won't happen.

--BoBo makes a great point that Sotomayor's testimony may shackle her rulings, at least in her first few years on the court.

--I'm not particularly stumped as to why Sotomayor did what she did. Conservatives have done a far better job laying out a judicial philosophy than liberals have over the last 15-20 years, and I think she probably just figured that adopting their lingo would blunt their attacks and be the path of least resistance. She clearly is someone who didn't want to take even the slightest risk of putting something out there that might cost her her seat on SCOTUS (even though as BoBo noted, there's no chance of her not being confirmed). I freely admit that I didn't necessarily predict prior to the hearings that she'd spout such language, but in retrospect, it's not that surprising. (However, for a long time, I actually have wondered why liberal judges and judicial nominees don't just parrot the same lingo (say that they're also "interpreting the Constitution" in their rulings and viewpoints), in order to confuse the electorate and negate what conservatives have tried to do. Think about it -- it'd be easy enough to do, and it would have the potential to eventually cloud things so much that it could force conservatives to have to come up with different language.)

--I'd bet dollars to doughnuts that Obama continues to bring up the empathy standard, and that the Sotomayor hearings won't restrict Obama. He won't shift gears at this point. He'll of course get asked in a future press conference how he felt about Sotomayor repudiating his standard, but I bet he sticks with it. Yes, it's his personal choice for SCOTUS repudiating his standard, but at the same time, he's the president, and he gets to pick all future judges and justices, not Sotomayor. So he can have whatever philosophy/standard he darn well pleases -- and I think this will hold whether he has more Senate votes in the future (like 65), less, or the same as he has right now.

http://online.wsj.com/article/SB124771329377349429.html

"Now that Judge Sonia Sotomayor has completed the bulk of her testimony before the Senate Judiciary Committee, partisans on both sides agree on one thing: The nominee has stayed away from forcefully advocating liberal positions.

What they make of that, of course, is different. Some left-leaning scholars wish she had offered more justification for liberal interpretations of the law..."

"Doug Kendall, who is president of the liberal Constitutional Accountability Center and close to some Obama administration officials, expressed his own mild disappointment.

"From my perspective, from the perspective of a progressive legal organization, she could have been more forceful in arguing or pointing out where the Constitution itself points in a progressive direction," he said."

"Mr. Kendall said he was disappointed by what he considered Judge Sotomayor's tepid defense of the idea that American judges can cite the opinions of foreign judges. "She could have been more aggressive," he said."

http://www.nytimes.com/2009/07/17/us/politics/17confirm.html

"Senior Republican staff aides said in interviews they expected that at least one and perhaps as many as three of the panel’s seven Republicans might vote to approve the Sotomayor nomination and send it to the full Senate, which is expected to confirm her in the first week in August."

"The aides said they expected Senator Lindsey Graham of South Carolina, whose questioning of Judge Sotomayor veered between folksy support and wariness, to vote to approve the nomination. They said he could be joined by Senators Orrin G. Hatch of Utah, Charles E. Grassley of Iowa, John Cornyn of Texas or Tom Coburn of Oklahoma. Senators Hatch and Grassley, committee veterans, have generally supported Democratic judicial nominees in the past. Senator Coburn said he was “mighty impressed” with Judge Sotomayor after questioning her."

"One of the aides, all of whom spoke on the condition of anonymity, said Republicans had for some time given up any hope of derailing the Sotomayor nomination. But the aide said that committee Republicans had taken satisfaction in two of Judge Sotomayor’s concessions at the hearings, which ended in the evening with panels of outside witnesses.

Not only did she back away from and express regret for her “wise Latina” comments, but the official said Republicans were also pleased that she seemed to repudiate President Obama’s formulation that a judge needed to have empathy for those who came before the court."

Some more great comments from BoBo. A few responses:

--I agree that at the margins, Roberts and Alito generally have tried to convey that they're honoring their hearing statements about stare decisis. But if it walks like a duck and quacks like a duck -- it's a duck. Roberts clearly is an incrementalist, but directionally, he's proceeding -- slowly -- with overturning precedents, which effectively is not following stare decisis. (In his defense, if it's something that ought to be overturned, then he's doing the right thing.) But the bottom line, I think, is that this is a bit of kabuki (or semantics), because the end result is that in their actions (if not in their words), Roberts and Alito are not really following what they said they'd follow at their hearings. Sure, their hearings likely have had an impact on how they *communicate* their actions on the SCOTUS, but I'm not sure they ultimately are impacting outcomes in terms of votes/decisions. One can indeed envision the exact same thing playing out with Sonia -- instead of her feeling like she has to veer right in her early years (as some commentators now are predicting), I can imagine her instead finding other reasons to justify her votes in her future opinions rather than citing her likely "true" feelings, since those were feelings she repudiated during her hearings. But, the end result may wind up being the same vote that it would have been had she not repudiated some of her liberal views in her hearings.

--I commend Scalia for calling Roberts and Alito out on the stare decisis issue.

--BoBo makes some great points about future nominees -- esp. about Cass but also about nonjudges in general. My own personal view is that Obama's true short list will be largely the same one that it was before, minus any Hispanics like Carlos Moreno and Ruben Castillo. And I don't see an African-American in the mix unless Thomas departs (so that eliminates Sears and Patrick). So, that leaves us with Garland, Kagan, Wood, Napolitano and Granholm, plus any new additions to the list (possibilities could include Koh, Karlan, Sullivan, Sunstein or even David Hamilton, once he's confirmed to the 7th CCA). While I also very much agree with BoBo that Wood and Garland are capable of revitalizing liberal jurisprudence (much more so than Sotomayor), some of the other possible new additions might be able to accomplish the same thing as well. The flip side is that yes, nonjudges are utter wild cards, which is why COA judges generally are such "safe" choices for presidents, relatively speaking, and likely defaults. Having said all of that, when you look at the shortlist above, the sheer numbers alone (plus his own words) would suggest that Obama will pick a nonjudge to some SCOTUS vacancy before his time is up as president.

--Of all of these, though, the ones who still seem likeliest to me (and the most SCOTUS-like) are Kagan, Garland and Wood. I really can't imagine any of the others getting the nod.

James Taranto nails it:

http://online.wsj.com/article/SB124775868855652183.html?mod=googlenews_w...

"As for the Republicans' having "set a new standard," we doubt either that they achieved that or that it was necessary. Sotomayor's thinking about the law turns out to be fairly unremarkable, and she was pretty effective in dismissing her most controversial statements--the "wise Latina woman" business--as diversity fluff. The confirmation hearings for an intellectually adventurous nominee (say, Harold Koh) would be far more contentious. But that would be true regardless of what happened with Sotomayor.

In any case, all other variables are swamped by one: which party controls the Senate. With 60 Democrats, Obama can probably get just about anyone he nominates through. That is likely to remain true throughout his second term, as the Democrats are defending only 17 seats in 2010, so that their continued control of the Senate is a very safe bet.

For the next four years, then, the best that conservatives and Republicans are likely to get out of the Supreme Court confirmation process is a chance to make the case for their ideas. A nominee with more intellectual firepower would provide an opportunity for a much sharper debate--but it would also be a more challenging one."

There could be a couple of good things to come out of Sotomayor's nomination it seems, though it's well short of "winning the war".

1) Given her tepid performance (and also her reported demeanor), it seems hard to imagine her as a future leader of the liberal block of judges or a person who could help swing someone like Kennedy very often. Don't the other liberals on the Court mostly follow Stevens' lead? If he ever leaves, that would seem to be the real battle royal, because even more important than replacing a liberal with one 30+ years younger is replacing the leadership he brings to that side. Maybe I'm biased, but it seems like there are more people on the conservative side who could unite and lead a group of justices in a certain direction, either because they can so narrowly craft a decision (Roberts) or because they have such convincing arguments (Scalia or Thomas). On the left it seems almost wholly dependent on Stevens.

2) If the GOP is smart (which is certainly NOT a given) it would seem that they could use the things Sotomayor claimed under oath to some advantage when it comes to Obama's COA nominees. If nothing else, if they get those folks to agree with her claimed philosophy and then they obviously violate it as COA justices, that could poison their later SC chances. But as long as we've got some GOP Senators who out of demographic fear will vote to confirm anyone who is not a white male, all bets are off.

I'm not defending their decision, but you have to keep in mind that several of those 22 'no' votes were future Presidential candidates (Bayh, heck even Obama) that have to pander to the leftwing base.

I don't know how many of the 40 GOP senators have Presidential aspirations.

On another note, Lugar is a 'yes'.

http://www.nytimes.com/2009/07/17/us/politics/17assess.html?_r=1

"[Sotomayor's] performance left some observers seeking meaning in the hearing’s absence of meaning. Sanford Levinson, a law professor at the University of Texas, said her approach might carry over into how she would behave as a Supreme Court justice.

'Frankly,' Professor Levinson said, 'I’d be more than a bit surprised if she became one of its intellectual leaders on the court inasmuch as she’s been revealed as a basically cautious person.'"

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/17/AR200907...

"Indiana Sen. Richard G. Lugar this morning became the first Republican to pledge support for Supreme Court nominee Sonia Sotomayor, who appears to have largely diffused allegations of judicial bias during three days of intense questioning about whether she is fit to sit on the nation's highest court.

Lugar, who served as something of a foreign affairs mentor to Obama when they served together in the Senate and remains close to him, was considered a potential supporter of Sotomayor even before the confirmation hearings. Other GOP lawmakers also considered potential supporters early on were Sen. Mel Martinez of Florida, the only Latino Republican in the chamber, and Sens. Susan Collins and Olympia J. Snowe of Maine.

Through her testimony, however, Sotomayor appears to have also potentially won over senators who are generally more critical of the White House. Sen. Lindsey O. Graham (R-S.C.), for example, told Sotomayor that her 'record as a judge has not been radical by any means.'"

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/16/AR200907...

"Graham is considered a bellwether for how large a majority of the Senate will vote for her. His support could lead the way for other Republicans to follow, and Sotomayor could be confirmed in the manner of Chief Justice John G. Roberts Jr., who received 78 "aye" votes in September 2005. A "no" vote from Graham, and Sotomayor's confirmation could be more like that of Justice Samuel A. Alito Jr., who garnered 58 votes four months after Roberts."

http://www.law.com/jsp/article.jsp?id=1202432320377

"Sotomayor also weighed in, tentatively, on an issue that has been debated inside and outside the Supreme Court for years. Under questioning from Sen. Arlen Specter, D-Pa., Sotomayor indicated she is likely to follow Justice Samuel Alito Jr.'s approach to deciding whether to join the Court's "cert pool."

The arrangement has been in place since 1972, allowing justices who participate to pool their clerks for the purpose of summarizing and recommending action on incoming petitions. Those one-clerk summaries are then distributed to all the members of the pool. The growth of the pool has led to criticism that individual clerks have too much power in the all-important gatekeeping function of deciding which cases the Court will take up and rule on.

When Alito joined the Court in 2006, he at first joined the eight-member pool but then dropped out after seeing how it operated. Sotomayor, who has clearly followed the long-running debate over the cert pool, said today, 'My approach may be similar to Justice Alito's.' In other words, she said, she wants to 'experience the process for a while,' presumably from inside the pool, and 'then figure it out.' As a result, she told Specter, 'I can't give a definitive answer.'"

From Bobo's list:

In 1998, the following Republicans now in the present Senate voted to confirm Sotomayor to the Second Circuit:

Collins - Maine
Cochran - Mississippi
Gregg- New Hampshire
Hatch - Utah

I'm going to assume Hatch is also a no; i figure he might want to clear up his dubious record of voting for every single nomination in the last 30+ years.

Gregg's not running for re-election; I assume he is a no as well.

That's a mild surprise.

Martinez isn't running for re-election either but he's voting for her for the obvious racial reason.

Methinks she is saying whatever she's been coached to say to get voted onto SCOTUS. Yes, she has the requisite training. Yes, she has years on the bench. But, there is so much both in her decisions and her speeches that she has now gone against (dare I say reversed) that I suspect she'll settle back into full liberal/radical mode once on the bench.

And, there is the double standard. If a GOP prez nominated a mirror image of Sotomayor--with dismissive paragraph dismissals, incendiary comments, and more--there would be, at a minimum, delays; and, most likely, a filibuster.

I recognize that the GOP can't muster a filibuster. I do hope more than 30 vote no.

Maybe you've already read this:

Two Republicans on the committee, Sens. Lindsey Graham of South Carolina and John Cornyn of Texas, came away calling most of her judicial record "mainstream," although both said her rulings — along with her four days of Senate testimony — were strikingly at odds with her past comments.

Even former House Speaker Newt Gingrich — who created a stir and political difficulties for his party by suggesting a remark by Sotomayor was "racist" shortly after she was nominated — acknowledged Friday that she came across in the hearings as "dramatically more moderate" than she had before. Still, he said it would be four or five years before it was clear whether she'd be a justice who would please conservatives or one who won confirmation by "fundamentally misleading the Senate."

http://www.latimes.com/news/nationworld/nation/la-na-sotomayor17-2009jul...

"Yale Law School professor Heather Gerken said Sotomayor's testimony 'drained the life out of the law' and turned it into a 'witless, mechanical exercise. . . . It's too bad that what is perhaps the law's most public moment gives the public so little sense of what a remarkable institution it is.'"

"UC Davis School of Law professor Vikram Amar said the hearing was 'less than useless. If Judge Sotomayor won't meaningfully discuss any legal topics in front of the Senate, then what's the point of the hearings?'"

"'Sotomayor stayed to the Roberts script,' said Erwin Chemerinsky, dean of UC Irvine School of Law. 'She described judging as mechanical. I understand why this is the script now, but I am troubled that it paints such a disingenuous and false impression of judging.'"

Chemerinsky says Sotomayor stayed with the "Roberts" script. Shouldn't he say the "Ginsburg" script? How disingenuous! The liberals again are being quite revisionist in their need to blame Republicans for all the world's ills. It just laughable to imply that John Roberts, and not Ruth Bader Ginsburg, created the judicial version of the "Don't ask, don't tell" policy.

http://www.google.com/hostednews/ap/article/ALeqM5gOnrXQGsx6QsScNPTlXpcN...

"On the current court, firmly divided between conservatives and liberals on so many cultural issues, Justice Anthony Kennedy is the only one whose vote could be described as up for grabs.

'Might she persuade Kennedy to come out differently than what Souter could persuade him to do?' Erwin Chemerinsky, dean of the new law school at the University of California at Irvine, said before the hearings. 'Can Sotomayor by virtue of her life experiences move Kennedy to join the more liberal bloc more often?'

Chemerinsky said at week's end, 'There's really no way to know at this stage.'"

MY TAKE? On a recent panel discussion of the Supreme Court's past term, I heard several commentators express the view that it appears that Kennedy has formed a bond with Samuel Alito. They backed up what they said with the fact the Kennedy wholeheartedly backed several Alito concurring opinions this term that were more conservative than the main opinion in each case. They said that such a move by Kennedy was unusual. They speculated that Alito's low key style worked well with Kennedy's more exaggerated one. Hopefully, Sotomayor's supposedly more outgoing, aggressive style will turn Kennedy off.

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/18/AR200907...

""Given that he is a popular new president and that Democrats hold their biggest majority in the Senate in three decades, Obama "could have nominated just about anybody and hoped to win confirmation," said Princeton University Provost Christopher Eisgruber, the author of a book on the Supreme Court nomination process. In Sotomayor, Eisgruber said, the president found a seasoned judge who would diversify the court -- but, in terms of her philosophy, he's "not trying to push the envelope on the court."

The president, Eisgruber said, may have decided not to spend political capital on the court while pursuing other difficult goals, including changes to the U.S. health-care system. Or "this may be a president who genuinely believes he wants to have a more moderate liberal on the court, rather than a more doctrinaire liberal. He may think it's better not to have a liberal Scalia," Eisgruber said, referring to the court's most outspoken conservative, Antonin Scalia."

"...Rep. Jerrold Nadler (D-N.Y.), who chairs the House Judiciary Committee's Constitution subcommittee, said he regrets that "you don't have anybody on the court as liberal as the conservatives are conservative."

Jeff Sessions (Ala.), the Senate Judiciary Committee's ranking Republican, said the White House and Democrats have been hobbled because, despite Democrats' strong victories in recent elections, public attitudes have not moved correspondingly. "The left's view of judges is not supported by the people," Sessions said.

[Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank] said liberal legal thinkers must devise new ways to build public support for their ideas to make it easier for Obama to pick outspoken judges. "Neither the old progressive idea about the living Constitution nor the new idea of judicial empathy have polled very well," he said.

As it is, Nadler said, "it will take a president with a lot of nerve" to nominate a justice substantially further to the left.

[Geoffrey R. Stone], of the University of Chicago, predicted that Sotomayor's hearings will make that task more difficult by creating "an unfortunate baseline" Republicans can use to challenge anyone more demonstrably to the left. Princeton's Eisgruber disagreed, saying that, by choosing a nominee who is female and Hispanic, Obama will be "free the next time to push harder, if he wants to, because he's satisfied some constituencies.""

http://www.politico.com/news/stories/0709/25087.html

Politico has a very interesting article on Sotomayor's behavior during oral arguments on the Second Circuit. The article gives links to audiotapes of various important cases she has participated in. Sotomayor comes across as very different than the cautious, measured jurist she pretended to be during her hearing:

"The tapes reveal a blunt judge who talks as much or more than her (often equally combative) colleagues; who makes no bones about interrupting or even, in one case, laughing at lawyers; and who goes to no great length to disguise her quarrel with an argument or her point of view.

But they also give no indication that Sotomayor is reluctant to tangle with lawyers who arguments the courts ultimately upholds, or that she is sharper-edged than other appellate judges – though she may be more loquacious than many."

If Sotomayor acts in private and in oral arguments on the Supreme Court like she does in these tapes, I bet she easily alienates Kennedy.

Reading between the lines is pretty easy....

Eisgruber's comments: Sotomayor is too conservative for progressive tastes - she was selected purely for demographic reasons. With that out of the way, Obama can go for a home run hard-line liberal ideologue with his next nominee, even if it means (oh the horror!) nominating a while male.

Jerrold the Hutt's comments: We don't have any liberals as brilliant and as persuasive as the conservatives are.

Kendall's comments: People hate our ideas when we are truthful about them, so we need to be more creative about how to get liberals as judges in without saying they are liberal.

A few more thoughts:

--bk makes a great point about Sonia not really seeming like a leader of a liberal bloc of votes. She does strike me more as a follower than a leader. So if that role ever is filled (post-Stevens, post-Ginsburg) by a liberal on the SCOTUS, it'll have to be by someone else. I actually think that Harold Koh would be a very persuasive leader from a liberal bloc standpoint (he strikes me as having a reasonably magnetic personality). Kagan might fit the bill as well. But I agree that it doesn't look like it will be Sonia.

--zendari, regarding which of the 40 GOP senators have presidential aspirations, of course the joke is, all 100 senators see a president when they look in the mirror! But as a practical matter, I don't see a single reasonable future GOP presidential candidate coming from the 40 senators. Thune, maybe? (he's young) Brownback? I'm stretching here. The GOP's comeback to the White House looks like it's going to have to come from somewhere other than the Senate. As a result, I don't think there's a single Republican senator who needs to worry about pandering to the base (by opposing Sonia) in advance of a tough presidential primary. So all GOP opposition votes to her will be driven by other factors.

--Classic is right about the double standard. If a Republican president did indeed nominate a mirror image of Sotomayor, there would indeed be at a minimum, delays, and more likely, a filibuster. It's hard to see how it wouldn't happen. At the same time, if there were just 40 Dem senators in that scenario, it'd be hard for them to all hold together for a filibuster. The difference is, the Dem senators would nonetheless be screaming bloody murder about the nominee (I think).

--Vikram Amar's complaints about the overall confirmation process are just fascinating. After Sotomayor's hearing, it is easy to ask oneself why do the senators even bother doing this nonsense. It makes one wonder -- will this be the norm (non-answers, lies and evasions from SCOTUS nominees of both parties) going forward?

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/20/AR200907...

"...She is fully qualified. She is smart and learned and experienced and, in case you have not heard, a Hispanic, female nominee, of whom there have not been any since the dawn of our fair republic. But she has no cause, unless it is not to make a mistake, and has no passion, unless it is not to show any, and lacks intellectual brilliance, unless it is disguised under a veil of soporific competence until she takes her seat on the court. We shall see.

In the meantime, Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past..."

" Contrast her approach to this and other problems with what Antonin Scalia has done with issues close to his own heart..."

"My admiration for Scalia is constrained by the fact that I frequently believe him to be wrong. But his thinking is often fresh, his writing is often bracing; and, more to my point, he has no counterpart on the left. His liberal and moderate brethren wallow in bromides; they can sometimes outvote him, but they cannot outthink him.

This is the sad state of both liberalism and American politics. First-class legal brains are not even nominated lest some senator break into hives at the prospect of encountering a genuinely new idea."

"From all we know, Sotomayor is no Scalia. She is no Thurgood Marshall, either, or even a John Roberts, who is leading the court in his own direction. She will be confirmed. But if she is not, liberalism will not have lost much of a champion or a thinker. A million lawyers in America and something Jimmy Carter used to say comes to mind: Why not the best?"

It's too bad Obama didn't nominate someone like Ahkil Reed Amar. An originalist who is a political liberal, Amar would be brilliant on the Court, unlike the prosaic leftists (Stevens, Ginsburg, Breyer, and soon, Sotomayor) we have today. Of course, because of his originalism, Amar might often stray from the leftist plantation, so it's unlikely he'd ever be nominated, more's the pity.

Perhaps Obama will put Amar on a circuit court....

http://apnews.excite.com/article/20090721/D99IRO680.html

"An aide to Maine Republican Sen. Susan Collins says Collins will vote for Supreme Court nominee Sonia Sotomayor.

Spokesman Ian Swanberg says Collins is preparing a statement detailing her support for President Barack Obama's first high court nominee. Sotomayor is in line to become the first Hispanic and third woman justice.

Collins becomes the fourth Republican to say publicly she'll break with her party's conservative leaders to support Sotomayor."

http://www.rollcall.com/news/37027-1.html

"Republicans on the Senate Judiciary Committee formally delayed a final vote on the confirmation of Sonia Sotomayor to the Supreme Court on Tuesday, putting off the start of a Senate floor debate until next week at the earliest.

Judiciary Chairman Patrick Leahy (D-Vt.) had hoped to hold a committee vote on Sotomayor’s nomination today, but Republicans invoked their right under the panel’s rules to a one-week delay. The vote will now take place on July 28."

http://www.washingtontimes.com/news/2009/jul/22/sotomayor-mirrors-souter...

"Despite Judge Sotomayor's unrevealing answers and relatively restrained judicial record, interest groups have pretty much pegged the Bronx-born judge as a liberal jurist likely to follow in the Souter mold and match his voting stands on the high court.

The National Rifle Association announced last week it would oppose her confirmation, while the abortion rights group NARAL Pro-Choice America said Tuesday it would support her.

Other scholars have said that, while Judge Sotomayor is hard to read from her record on the bench, she is likely to fall somewhere on the political scale in the middle of the court's three other liberal members: Justices Ginsburg, Stephen G. Breyer and John Paul Stevens.

"If you want a guess, and this is just a guess, Obama has been influenced by Cass Sunstein, who believes in a certain form of left-wing judicial minimalism," said Mark Graber, a constitutional law specialist at the University of Maryland Law School.

Mr. Sunstein was picked by Mr. Obama to lead the White House Office of Information and Regulatory Affairs in January."

http://www.tnr.com/politics/story.html?id=3cd8a28f-89bb-4854-aed0-76c572...

"Obama's first five circuit-court nominations raise serious concerns. Their average age of 55 (they are 51, 52, 54, 58, and 60) is considerably higher than the average age of nominees under recent past presidents. According to regional circuit-court data compiled from the Federal Judicial Center, Reagan's nominees were, on average, 50 years old; George H.W. Bush's averaged 49; and George W. Bush's averaged 50. Even Clinton's nominees were under 52 on average."

"Because Republicans have done a better job than Democrats of nominating young judges, the lower federal courts have had a sustained and substantial conservative presence well beyond the tenure of Republican presidents. Decades after their nominations, judges like Posner, Wilkinson, and Kozinski are major figures in the legal world. The credibility and exposure that come from many years on the federal bench have allowed these judges to exercise enormous intellectual influence.

The Republican practice of appointing younger circuit-court judges has also proved crucial for recent Supreme Court nominations..."

http://www.politico.com/news/stories/0709/25252.html

"Several Republicans on the Senate Judiciary Committee are struggling with a sticky political dilemma over Supreme Court nominee Sonia Sotomayor: Do they vote “no,” please the conservative base and send a message that liberal justices will be opposed at every turn?

Or do they vote “yes” and dampen Democratic attacks over their opposition to a nominee who will almost certainly become the first Latina Supreme Court justice?

At least five GOP senators on the committee — Lindsey Graham (S.C.), Chuck Grassley (Iowa), Jon Kyl (Ariz.), Orrin Hatch (Utah) and John Cornyn (Texas) — say they’re still weighing how to vote, which they say will have nothing to do with politics..."

"Outside of the five undecided Republicans, the other two Republicans on the committee — ranking Alabama Republican Jeff Sessions and Oklahoma Republican Tom Coburn — are both viewed as likely “no” votes based on their comments through the course of last week’s confirmation hearings, but they have not yet announced how they'll vote."

"Brian Darling, director of Senate relations at the conservative Heritage Foundation, said GOP defections would be “devastating” for the party’s messaging from her nomination.

“A strong bipartisan vote allows him [Obama] to tack farther to the left,” Darling said.

But Curt Levey, head of the conservative Committee for Justice, set the bar lower, saying that if a majority of the Judiciary Committee Republicans are in opposition and 25 to 30 Republicans vote against her on the Senate floor, it would “clearly beat expectations.”

Already, four GOP senators — Susan Collins, Mel Martinez, Dick Lugar and Olympia Snowe — have announced they will vote for Sotomayor.

But how the undecided Republicans on Judiciary vote will determine whether her confirmation turns into a rout or a largely party-line affair with a few minor defections.

Sens. John McCain (R-Ariz.) and Lisa Murkowksi (R-Alaska) are saying they’ll watch the Judiciary Committee vote next week before they make a decision. Sen. Kay Bailey Hutchison (R-Texas) is in a particularly precarious position: She’s trying to win the GOP Texas primary for governor and needs to woo a conservative party electorate yet still has to be concerned about Hispanic voters in a general election. She says it’s not about politics but has raised concerns over Sotomayor’s record on the Second Amendment."

http://blogs.abcnews.com/legalities/2009/07/kyl-to-vote-against-sotomayo...

"Calling her Judiciary Committee testimony “evasive, lacking in substance and, in several instances, incredibly misleading,” Arizona Sen. Jon Kyl said he will vote against Sonia Sotomayor’s nomination to the Supreme Court.

Kyl, the Senate’s No. 2 Republican, will announce his decision on the Senate floor Wednesday morning. After asking Sotomayor tough questions last week and being clearly dissatisfied by her answers, his decision is not unexpected.

It is, however, significant, because it shows the Republican leadership clearly standing firm against Sotomayor -- even a Senator from a state with a significant Hispanic population."

http://www.rollcall.com/news/37089-1.html

"Sen. Lindsey Graham (R-S.C.) is expected to endorse the nomination of Supreme Court hopeful Sonia Sotomayor on Wednesday — even though he was one of her toughest questioners during her four-day Judiciary Committee confirmation hearing last week, senior GOP aides said.

But Sen. Thad Cochran (R-Miss.), who voted to confirm Sotomayor to the 2nd U.S. Circuit Court of Appeals in 1998, is expected to join Minority Whip Jon Kyl (R-Ariz.) in opposing her nomination to the high court."

It almost seemed like he had a prepared list of decent questions but just asked them and let it go at whatever she replied, moving on to the next one.

I hate to say it, but one of the best jobs of questioning I ever recall seeing at a SJC hearing was Arlen Specter with Anita Hill. As I recall it, he methodically destroyed her story and her credibility. It was certainly the best thing he's ever done in politics, not that there are a whole lot of other worthwhile things of his to compare it to. I felt almost guilty watching it, because she was so helpless to stop the onslaught.

He's always had a bit of his own mind....sounds a bit like Feingold and Leahy supporting John Roberts in the SJC.

In his introductory remarks at Sotomayor's hearing, I think Graham did a pretty good job of indirectly saying that he already decided prior to the hearing that he would vote for Sotomayor out of deference to the right of any president to fill judicial vacancies based on qualifications and not ideology:

(http://lgraham.senate.gov/public/index.cfm?FuseAction=PressRoom.PressRel...)

"Now, there was a time when someone like Scalia and Ginsberg got 95-plus votes. If you were confused about where Scalia was coming down as a judge, you shouldn't be voting, anymore than if [there was] a mystery about [where] Justice Ginsberg was going to...That is no mystery."

"But generally speaking, the president has nominated someone of good character, someone who has lived a very full and fruitful life, who is passionate. From day one, from the time you got a chance to showcase who you are, you've stood out and you've stood up and you've been a strong advocate and you will speak your mind."

"So I don't know how I'm going to vote, but my inclination is that elections matter. And I'm not going to be upset with any of my colleagues who find that you're a bridge too far, because in many ways, what you've done in your legal career and the speeches you've made give me great insight as to whether -- where you'll come out on these 5 percent of the cases.

But President Obama won the election and I will respect that."

Scalia was confirmed 23 years ago.

After Bork, Thomas, Roberts, Alito, and Schumer's 'reverse the presumption of confirmation' line?

Fool me once...

http://www.rollcall.com/news/37111-1.html

"With the confirmation of Supreme Court hopeful Sonia Sotomayor now a foregone conclusion, Republicans and Democrats have started playing the time-honored parlor game of guessing where the handful of wavering GOP Members will end up.

Sen. Lindsey Graham (R-S.C.), a member of the Judiciary Committee, on Wednesday became the fifth GOP Senator to formally endorse her nomination. He joined Maine Sens. Olympia Snowe and Susan Collins, as well as Dick Lugar (Ind.) and Mel Martinez (Fla.).

With Graham’s support in hand, all eyes are now on a small group of other Judiciary Republicans — Sens. Orrin Hatch (Utah), Chuck Grassley (Iowa) and, perhaps, John Cornyn (Texas) — who Democrats hope will throw their weight behind Sotomayor. The Judiciary Committee plans to vote Tuesday on the nomination, with the full Senate expected to confirm her later next week or the first week of August."

http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin?curre...

I don't know if this has already been posted, but according to Toobin, Roberts (and not Scalia) is the real leader of the conservative movement of the Court.

Nothing all that newsworthy, but I guess it explains why the Democrat Senators talked about him more than they did about Sotomayor.

http://www.law.com/jsp/scm/PubArticleSCM.jsp?id=1202432468696&White_Hous...

"At the request of a Democratic Senate, the Bush administration in 2006 opened a rare window on the process for preparing a Supreme Court nominee for a confirmation hearing. The administration produced a list of 38 people -- members of the Republican legal elite, from inside and outside government -- who had helped Samuel Alito Jr. practice the answers he would give to the Senate Judiciary Committee.

Don't expect a similar list this time around.

The Obama administration says it won't name those who participated in practice sessions with its nominee, Sonia Sotomayor, refusing even to give a clear reason for keeping the information hidden. Republicans haven't pressed the White House to release a list, and the Democrat who procured Alito's said he's not interested in Sotomayor's."

http://writ.news.findlaw.com/amar/20090723.html

"Indeed, the hearings may have been worse than simply an educational opportunity lost. In one important respect, they may have affirmatively misinformed the American people. I speak here of the dominant theme of Judge Sotomayor's testimony – from her opening statement, right through to the end – the theme that "[t]he task of a [federal] judge is not to make law. It is to apply the law."

However nice this sounds, it simply isn't true. As my friend (and fellow LATimes blogger on the hearings) Erwin Chemerinsky put it, "Every first year law student knows that judges make law." State court judges make new law in the areas of contract, tort and property law, among others. And the Supreme Court fashions law in virtually all of its rulings.

To see this clearly, consider two of the most contentious decisions from last Term – the New Haven firefighters case (featured so prominently in the Sotomayor hearings), and the challenge to the federal Voting Rights Act. In both cases, the Court read a landmark federal statute in a particular way, likely influenced by the Court's plausible --but by no means necessarily correct -- understanding of the Amendments to the United States Constitution adopted after the Civil War. In neither case could one argue with a straight face that the majority's reading of the law was undeniably compelled by the text of the statute or the words and history of the Constitution. Both cases were classic judgment calls, in which the judgment of conservative jurists carried the day."

As I have written earlier, each nomination is a discrete event, only minimally related to previous nominations and confirmations. As a result, many of the assertions that Lithwick makes in here about some new "Sotomayor standard" are ridiculous. It would be as if there were a "Roberts standard" or an "Alito standard" during the Bush years. There was no such thing. And there won't be a "Sotomayor standard," either. If anything, the GOP would have a tough time trying to somehow "hold" a future Obama SCOTUS nominee to a "Sotomayor standard" seeing as how the vast majority of Republican senators will be voting against her anyhow.

In the end, Obama (like Bush 43, like Clinton) will want to nominate someone for a future vacancy that he feels really comfortable with. Obviously, efforts to nominate a "pal"/soul mate don't always work so well for presidents (see Harriet Miers, Bruce Babbitt, Mario Cuomo, Richard Arnold, and Richard Riley), but they certainly can. I don't think anything that has happened in the last few weeks would preclude Obama from nominating, say, his pal Cass Sunstein (or his pal Granholm, or his pal Kagan, or his pal Wood, or his pal Napolitano) to the SCOTUS. Kathleen Sullivan -- yeah, that's a tougher one, but because of the failed bar exam, not because of her jurisprudence. And Koh and Karlan would be controversial nominees regardless -- not because of anything that came out of the Sotomayor hearings.

Anyhow, here's the Lithwick article from Newsweek:

http://www.newsweek.com/id/208123

Chairperson: "I think you're a fine nominee and I support you 100%. The other Senators on my side feel the same way. We have no questions."

Ranking Member: "Are you going to be any more forthcoming than any of the nominees since Ruth Bader Ginsburg?"
Nominee: "No."
RM: "Thank you. Our side has no further questions."

It seems like we waste 2-3 days just to get what could be accomplished in 5 minutes.

http://www.latimes.com/news/nationworld/nation/la-na-sotomayor23-2009jul...

"Graham stood out when he said that presidents deserve deference on their choices for the court. He said as much Wednesday.

"I would not have chosen her if I had made this choice as president, but I understand why President Obama did," Graham said. "Elections matter."

Had Graham announced that he was going to vote against Sotomayor, it would have signaled that Republicans were gearing up to push for a close vote along party lines. But his support ensured that Sotomayor would be voted out of the Judiciary Committee next week with some bipartisan backing -- providing political cover for others in the Republican caucus to vote for her.

Her confirmation appears virtually certain, as Democrats hold a 60-vote supermajority in the Senate. That basic math has shifted the focus to whether Sotomayor would collect a substantial number of GOP votes, bolstering the White House's contention that she is a centrist judge."

http://hosted.ap.org/dynamic/stories/U/US_SOTOMAYOR_CORNYN?SITE=AP&SECTI...

"Republican Sen. John Cornyn, the head of his party's Senate campaign arm, said Friday he'll vote against Supreme Court nominee Sonia Sotomayor, siding with GOP leaders and conservatives who are lining up against President Barack Obama's nominee to be the first Hispanic justice."

http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=ad642a49-1b78-be3e-e052-ab5f5f2b9bc7

I entered into the confirmation process of Judge Sotomayor with the strong desire to vote in favor of her nomination. Her credentials and experience are very impressive and her personal demeanor is pleasantly cordial and friendly. I found that the great respect I have for Judge Sotomayor’s heritage and history added even more to my desire to carefully review her record and opinions in hopes of finding them truly grounded in the rule of law and acceptable to earn the support and trust of the American people and myself.

Arriving at a final decision was particularly difficult because I like and highly respect Judge Sotomayor and, in general, give a great deal of deference to any President’s nominee. The prospect of a woman of Puerto Rican heritage serving on the Supreme Court brought great excitement to me and says a lot about America.

However, after thoroughly reviewing Judge Sotomayor’s record and being able to hear her testimony and responses during the hearing process, I reluctantly, and with a heavy heart, have found that I cannot support her nomination to the U.S. Supreme Court. In truth, I wish President Obama had chosen a Hispanic nominee that all Senators could support. I believe it would have done a great deal for our great country. Although Judge Sotomayor has a compelling life story and dedication to public service, her statements and record were too much at odds with the principles about the judiciary in which I deeply believe.

http://volokh.com/posts/1248391622.shtml

My own personal (StayUpLate's) opinion is that it's entirely the case that Obama's been distracted with other things. Adler doesn't mention this, but I believe this is borne out pretty convincingly by the fact that Obama so far has made exactly four district court nominations (even fewer district court nominations than the five COA nominations he's made so far). District court nominations are usually slam-dunks in the Senate, and are supported and put forth entirely with state-level support. They're usually not controversial. At all. And yet, the president hasn't nominated hardly any. Why not? I think the answer is these myriad other distractions -- and that's the same reason he hasn't yet nominated many COA nominees. My guess also is that Obama thinks it's still fairly early (it isn't, as ConfirmThem regulars know), and that he's got lots of time. He does indeed have three and a half years to go in his term, but things will slow down a lot in 2012, even in advance of the Thurmond Rule. And the Senate isn't always in session anyhow. The more I think about it, the more I think Obama has a lot less time left than he realizes.

Here's what Adler wrote last night (I included links where they help the understanding of Adler's post):

"President Obama has a remarkable opportunity to remake the federal appellate bench. As I explained in this article (http://article.nationalreview.com/print/?q=NjBmNzA4YThiN2YwOWVjODdkMzI1M...), in a single term President Obama could nominate almost as many circuit judges as President Bush did in two. Indeed, President Obama could have a greater effect on the circuit courts than on the Supreme Court. Yet to accomplish this, the President has to actually make some nominations.

"To date President Obama has made only five nominations to the U.S. Courts of Appeals. Three of these judges have been reported out of committee (http://judiciary.senate.gov/nominations/111thCongressJudicialNominations...); none have been confirmed. Moreover, as David Fontana and Micah Schwartzman note (http://blogs.tnr.com/tnr/blogs/environmentandenergy/archive/2009/07/23/p...), President Obama's appellate nominees are significantly older than those of his predecessors.

"This seems like a substantial missed opportunity -- at least thus far. By comparison, President Bush made eleven appellate nominations in May 2001, and several more shortly thereafter. Admittedly, the folks who vet potential judicial nominees have had other things to do (http://www.whitehouse.gov/Sotomayor/), but the Bush folks were also preparing for a potential Supreme Court nomination early in their term (albeit one that did not materialize). I'm not complaining -- as a general matter, I'm more favorably inclined toward Bush's nominees than those President Obama is likely to put forward -- but it is interesting to observe that the Obama Administration could be missing an opportunity to put its stamp on federal appellate courts. Perhaps this is a consequence of trying to do so much, so fast. With the stimulus, health care, cap-and-trade, and everything else, who has time for judges?"

all of the above are most helpful for discussion and information, but there are so many now that perhaps a clean slate getting ready for the vote would be helpful.