The confirmation hearings for Sonia Sotomayor begin this week, but the focus won't be on the kind of traditional culture war issues that have come to define Supreme Court battles. Instead, both the minority and majority witness lists suggests the GOP intends for the fight over Sotomayor to be fought on the battlefield of race, specifically the Ricci v. DeStefano affirmative action case.
Race may prove a minefield not only for the shrinking, increasingly homogeneous GOP, but also for the Democrats, who risk turning a popular Supreme Court nominee into a millstone if Republicans manage to discredit her. These are a few of the major players on the witness list -- who they are can tell us a great deal about how the hearings themselves are going to play out.
The Boss: Sen. Patrick Leahy
As chairman of the Senate Judiciary Committee, Leahy is running the show -- and he's not going to let the hearings degenerate into racial demagoguery. Leahy has been one of Sotomayor's most vocal defenders, comparing her experience with Latino civil rights groups to Supreme Court Justice Thurgood Marshall's background with the NAACP. Look for Leahy to probe Sotomayor's views on executive power -- one of the areas where he frequently butts heads with the White House.
The Tough on Crime Crew: Michael Bloomberg, Louis Freeh, Robert Morgenthau, Dustin McDaniel, Michael J. Garcia and Chuck Canterbury
Sotomayor has a slate of law-and-order defenders to testify to her tough-on-crime bona fides including Michael Bloomberg, the mayor of New York City; Louis Freeh, the former head of the FBI; Robert J. Morgenthau, former District Attorney for Manhattan (where Sotomayor worked for him); Dustin McDaniel, the attorney general of Arkansas; Michael J. Garcia, a Bush appointee and former DA for the Southern District of New York (which has handled a number of important terrorist cases); and Chuck Canterbury, head of the Fraternal Order of Police. Sotomayor's rulings on crime-related issues put her to the right of the justice she's replacing, David Souter.
Crime isn't on the minds of Americans the way it once was -- the law-and-order slate will be used to counteract the idea that Sotomayor is a softie who bases her rulings on her feelings, and to remind us she used to be a criminal prosecutor. There's also a pinch of dog whistle racial politics here. Many Americans still see crime through a racial lens, so Democrats may be hoping Sotomayor's willingness to throw the book at crooks will counteract the notion that her rulings are racially motivated. This helps explain why the majority has stacked their witness list with so many criminal justice heavy hitters.
The Home Team: Sen. Chuck Schumer, Rep. Jose Serrano, Rep. Nydia Velazquez
Schumer isn't just a senator from New York, he's a hardcore New Yorker, the kind of guy who shouts out Brooklyn almost as much as Biggie Smalls once did. When it comes to his hometown, Schumer is a sentimental populist -- he'll likely emphasize Sotomayor's humble Bronx roots and how Sotomayor "saved baseball" by siding with the players in the 1995 strike. Former major league pitcher David Cone will also testify as a firsthand witness to the dispute, in which the owners attempted to get rid of free-agent negotiations and salary arbitrations in the middle of negotiations over a new collective bargaining agreement.
Back in May, Serrano told reporters that the Bronx was "bursting with pride to know that one of the kids from the neighborhood, a sister, a daughter, a friend, a Puerto Rican, a Bronxite has been honored with this nomination." Velasquez, who serves as chair of the Congressional Hispanic Caucus, will also shore up Sotomayor's historic bona fides.
The Civil Rights Stalwarts: Wade Henderson, JoAnne E. Epps, Ramona Romero, and Theodore M. Shaw
The civil rights community is strongly behind Sotomayor. The Leadership Conference on Civil Rights, which Wade Henderson heads, is an umbrella organization that counts as members groups from the AARP to the NAACP. Theodore Shaw is a former director of the NAACP Legal Defense Fund. Sotomayor is more than just an ally -- as an active member of the Board of the Puerto Rican Legal Defense Fund, she was one of them.
JoAnne Epps, of the National Association of Women Lawyers, will help reassure senators that Sotomayor has a good record on women's rights -- although her case is likely to be somewhat ephemeral, because Sotomayor hasn't had a chance to develop a clear record on abortion. A NAWL evaluation of Sotomayor's record concluded that she was well qualified and had "displayed great knowledge and understanding of the impact of gender and race-based comments and behavior in the workplace."
Ramona Romero of the Hispanic Bar Association will likely defend Sotomayor's associations with Latino civil rights groups -- specifically from ranking Republican Senator Jeff Sessions, who has a deep seated aversion to them.
The Legal Eagles, in the affirmative: Patricia Hynes, Kate Stith, and Theodore M. Shaw
These witnesses will be testifying to the quality of Sotomayor's jurisprudence and legal background -- Patricia Hynes is head of the New York Bar association, which found Sotomayor "highly qualified" in its review and evaluation of her record.
Kate Stith took over as the Dean of Yale's Law School after another potential SCOTUS Nominee, Harold Koh, was tapped for a post in the Obama administration. As an expert on criminal law, Stith will be prepared to further shore up Sotomayor's tough on crime credentials.
Shaw was director of the NAACP LDF, and is a professor at Columbia's law school, which makes him well position to comment not just on Sotomayor's civil rights record, but her legal qualifications in general.
The Southern Partisan: Sen. Jeff Sessions
As the ranking Republican on the committee, he'll be the leading voice of opposition. In some ways, Sessions is a poor point-man for the GOP on racial issues, given his checkered background on race. As a U.S. Attorney, he lamented having to prosecute civil rights cases, called the NAACP and the ACLU "communist-inspired" for their efforts to protect black voting rights. According to witnesses at his confirmation hearings in the 1980s, as a U.S. Attorney in Alabama, Sessions called a black Department of Justice lawyer a "boy" and told him to "be careful what you say to white folks."
Sessions hasn't been shy about criticizing Sotomayor. He recently attacked Sotomayor's association with mainstream civil rights group the Puerto Rican Legal Defense Fund, calling the group "radical."
The Responsible Critic: Sen. John Cornyn
Cornyn has been something of a voice of moderation on Sotomayor -- as chair of the Republican Senatorial Committee, he's partially responsible for helping the GOP win back a majority -- something that won't happen if the GOP alienates Latinos by focusing on Sotomayor's Puerto Rican background.
As a former judge and rumored potential SCOTUS pick for Bush in 2005, Cornyn has the legal chops to give Sotomayor a thorough and competent grilling on legal issues. Look for him to focus less on race, and more on issues of judicial activism, bringing up Sotomayor's 2005 comment that the appeals court is where "policy is made."
The Judge-Advocate General: Sen. Lindsey Graham
A former JAG lawyer, Graham is the Senate's leading expert on military law. Since he's currently writing the new legislation regarding the Obama administration's revival of the military commissions, look for Graham to question Sotomayor's views on executive power and the war on terror -- issues on which Sotomayor's record doesn't offer much insight. Graham told Sotomayor in a face-to-face meeting in June that he probably couldn't vote for her -- but that doesn't mean he won't have much to say at the hearings.
The GOP Operatives: Peter Kirsanow, Linda Chavez
The minority witness list suggests the GOP is going to focus heavily on race during the hearings, and Peter Kirsanow, head of the U.S. Commission on Civil Rights, will be part of that. He's referred to affirmative action as "intentional racial discrimination" and suggested that Arabs might be herded into detention camps were there to be another terrorist attack on American soil.
A former Reagan administration official, Linda Chavez is head of the Center for Equal Opportunity, which she founded in 1995 -- an Orwellian name for an organization that exists to dismantle existing civil rights protections, from voting rights to affirmative action. She too will look to hammer Sotomayor on Ricci -- and on her liberal record in cases involving immigrants -- the CEO is also opposed to bilingual education and ballots.
The Firefighters: Frank Ricci and Ben Vargas
If there's anything that will eviscerate conservative hypocrisy regarding "empathy" on the bench, it's the testimony of two of the firefighters in the affirmative action Ricci v. DeStefano case. Ricci and Vargas are at the hearing to put a sympathetic face to the GOP's race-related demagoguery, it's one thing for wealthy white senators to complain about race -- it's another for a pair of working class firefighters to talk about how Sotomayor's ruling on a race-related case has affected their livelihoods.
The Culture Warriors: Sandy Froman, David Kopel Stephen Halbrook and Charmaine Yoest
The GOP's culture war staples, gun rights and abortion, are clearly taking a backseat to racial issues. Nothing exemplifies this more than the presence of three witnesses on gun rights and one -- Charmaine Yoest -- on abortion, as compared to at least five on race. Sotomayor has ruled on few abortion related cases and has not articulated a clear view on the subject, something that has both pro-life and pro-choice groups scrambling to find out where she stands.
On gun rights though, Sotomayor recently ruled that the individual right to bear arms doesn't restrict states and cities from regulating that right. But that case, Maloney v. Rice, may soon go before the Supreme Court, where Sotomayor would likely recuse herself based on her prior ruling. Nevertheless, Sandy Froman, a former head of the NRA, and David Kopel and Steven Halbrook of the Independence Institute, a right-wing think tank, will testify that Sotomayor doesn’t respect the right to bear arms, using the Maloney case as proof. Interestingly enough, the Maloney case involves not guns but nunchucks, so there may be some awkward explanations involved in their testimony.
What's odd is that a recent CNN poll suggests it is on these issues, abortion and gun rights -- not affirmative action -- where Americans are most concerned about Sotomayor's position.
The Legal Eagles, in the negative: Noemi Rao, Nick Rosenkranz, John McGinnis, and David Rivkin
This slate of conservative legal all-stars, particularly Georgetown law professor Nick Rozenkranz, and Noemi Rao of George Mason University, will probably focus on the influence of foreign law on the Court -- a constant bugaboo for the right because it generally has a liberalizing effect on the high court. Justice Anthony Kennedy's move to the left on issues such as the death penalty had a great deal to do with his travels abroad and study of international law.
John McGinnis, a professor at Northwestern and an outspoken critic of affirmative action, will likely also take on Sotomayor's Ricci ruling, while David Rivkin, who argued in the Wall Street Journal that the Bush administration's torture memos proved the United States didn't torture, will focus on executive power.