Political drama over high Court appointments has been a part of DC politics ever since “Dixiecrats,” Jim Crow supporting southern Democrats, opposed President Lyndon Johnson’s nomination of former NAACP lawyer Thurgood Marshall’s appointment to the Supreme Court in 1966. His appointment, while making history, also kicked off a new and vicious process of organized resistance to Court nominations. Not only did Marshall change the complexion of the nation’s highest court, the Baltimore born civil rights attorney also changed the nature of how partisan politics encroached the judicial selection process. While nominees in the past were subject to criticism and attempts to derail appointments, the Marshall confirmation intensified such strategies.
The nomination by President Obama of federal appeals court Judge Sonya Sotomayor has once again rekindled partisan sniping to a degree reminiscent of the appointment by President George H. Bush of Clarence Thomas in 1992. Much like Thomas, “race” is at the center of the controversy. In the case of the conservative Thomas, it was the left warning the public over his ideological positions and attitudes on progressive cornerstone issues such as affirmative action and voting rights. Thomas also faced allegations of sexual harassment from a former aide, law professor Anita Hill, whose testimony became the focal point of the Senate confirmation hearing. Today, it is the right that is seeking to demonize Sotomayor as an “activist jurist” and using excerpts from an innocuous speech to suggest, as some right leaning pundits have claimed that the native New Yorker is racist. Conservatives are also attempting to use her role, or alleged silence, on the appeal of a New Haven, Connecticut affirmative action case, Ricci v. DeStefano, as evidence of her activist streak on matters of race.
Despite the Republicans opposition, the political “math” is clear – Democrats will have the votes to have Sotomayor’s nomination confirmed. Given the fact that the numbers work against the GOP, the real question becomes at what cost do Republicans go after Sotomayor? There is a political risk to the Republican Party if its extreme right flank is allowed to tee off on the nominee, and the risk is clear. For a party that lost the Hispanic vote in last November’s presidential election, and scores low with Latinos for its demagoguery on immigration, it is risking its long-term viability by alienating Hispanics with their opposition to Sotomayor. While there is no doubt Hispanic support for the GOP, the margin is diminishing and stands to shrink if the current nomination process gets testy. There is little safe space for Republicans in this instance, and Democrats will use every tool at their disposal to cast the GOP as reactionary and racist. What remains to be seen is whether there are any Republicans who can enforce self-discipline among their ranks and make the case for cooler heads to prevail against the backdrop of a nominee who, barring some bombshell, will be confirmed.
In many ways, this is a moment of truth for the Republican Party. Since their crushing defeat at the polls in November, the Republican Party has been adrift, searching for an identity and a voice as the opposition party. Attempting to fill that void, for the most part, has been figures outside of the field of GOP elected officials and party leaders such as former House Speaker Newt Gingrich, former Vice President Dick Cheney and talk radio personality Rush Limbaugh. The onslaught of voices from the right has cast a determinately conservative pall over the party at the very time the electorate is leaning in the opposite direction. Yet, the party appears to have hit the self-destruct button, with its right flank more interested in being right than building a political party that reflects 21st century America.
The nomination of Sonia Sotomayor to the Supreme Court will also be a test of Michael Steele’s leadership of the Republican Party. The party’s first Black chairperson will either be overwhelmed by conservatives, and see his stock sink even further, or find a way to broker a deal that will allow the party to put distance between itself and Judge Sotomayor’s most strident critics. If he can successfully find a way to minimize the damage to the party’s relationship with Hispanics, Steele may be able to use the nomination process to present a picture of a more tolerant Republican Party. By doing so, he may position the GOP to start engaging in the long-term relationship building that will be necessary to make inroads into the Hispanic community, and to a lesser degree, Blacks. Democrats, if Republicans go nuclear in their attacks on Sotomayor, may be in a much stronger position to reinforce the perception of their GOP colleagues as hostile to racial minorities. If that label sticks, the political climate in play today may be the precursor of a more permanent realignment that results in a much narrower, mostly white Republican Party and a solid Black-Latino alliance in the Democratic Party.