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Sotomayor’s Bumpy Road to Confirmation

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Posted on Aug 6, 2009
Sotomayor hearing
AP / Pablo Martinez Monsivais

Senate Judiciary Committee Chairman Patrick Leahy swears in Supreme Court nominee Sonia Sotomayor during confirmation hearings in July.

By T.L. Caswell

The Senate has made it official: Sonia Sotomayor will wear the robe of a U.S. Supreme Court justice.

Federal appellate Judge Sotomayor’s nomination was confirmed Thursday on a vote of 68 to 31. For the 55-year-old Greenwich Village resident, who is of Puerto Rican descent, the action marked the end of an 11-week-long vetting process in which, at least in some minds, troubling questions of ethnic identity, gender and judicial activism were raised.

The nomination easily survived a barrage of criticism that started when President Barack Obama announced his selection of Sotomayor on May 26 to replace retiring Associate Justice David Souter, 69. Souter often voted with the liberal bloc on the high court although he was nominated by a conservative Republican president, George H.W. Bush, in 1990. In recent years, the typical vote split in cases with heavy ideological or political content has been 5 to 4, with the conservatives on top.

The dyed-in-the-wool conservatives on the court are Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The liberal votes usually come from Justices Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. The conservative Justice Anthony Kennedy is often the crucial swing vote.

According to a 2008 article “ranking the politics” of U.S. justices over the years, “Four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt … are currently sitting on the bench today.” A fifth member of the current court, Kennedy, nominated by the Republican Ronald Reagan in 1988, also is in the top 10. The survey covered the 43 judges who have been on the high court since 1937.


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Here are the rankings of the conservatives now on the court, with the percentage of conservative votes of each: No. 1, Thomas, 82.2 percent; No. 3, Scalia, 75.7; No. 4, Roberts, 75.3; No. 5, Alito, 74; No. 10, Kennedy, 64.7 (the No. 2 spot was held by the late Chief Justice William Rehnquist, at 81.5 percent).

Another article, also posted last year, gives the rankings of the four other court members, all liberals, along with their percentages of conservative votes: No. 29, Souter, 37.4 percent; No. 31, Breyer, 37.2; No. 32, Stevens, 34.1; and No. 35, Ginsburg, 31.2.

Although it’s impossible to foresee a justice’s ideological evolution over a career of many years on the bench (witness the far right’s disappointment in Souter), Sotomayor is expected to generally be in the liberal bloc. And because she will replace the liberal Souter, the ideological composition of the court will not change. The vote division will continue to favor the justices on the right—unless the retirement or death of a conservative justice enables President Obama to send up another liberal nominee. None of the conservative justices is so old that infirmities of age would be probable to force his retirement during a two-term Obama presidency. If Obama were president for eight years and the five conservative justices remained on the court, these would be their ages when he left office: Scalia, 80; Kennedy, 80; Thomas, 68; Alito, 66; and Roberts, 61. So, it’s far from a sure bet that Obama will be able to replace any conservatives with liberals.

For sake of comparing Thursday’s 68-31 vote to a couple of other Senate confirmation votes within the last several years: The 2005 vote on Roberts was 78 to 22; the 2006 vote on Alito, 58 to 42.

Berating a president’s Supreme Court nominee has been one of the delightful perks of public service for generations of Washington pols, both Republicans and Democrats. Many Supreme Court nominees have been rewarded for their achievements by being thrashed in the village square. Even a saintly, judicially flawless jurist who had walked on the water of the nearby Capitol Reflecting Pool en route to a confirmation hearing might not avoid a generous lashing at the hands of Senate inquisitors from the opposing party. By Washington standards, it’s all in good fun.

A nominee’s paper trail almost always presents something for the opposition to sink its fangs into. In Sotomayor’s case, the succulent item was a statement she made in a 2001 speech at UC Berkeley: “ … I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” (Click here to see the text of her speech.)

Had Sotomayor—who made similar remarks with slightly different phrasing on other public occasions—known that within the decade she would be facing a congressional hearing on her nomination to the Supreme Court, she may well have chosen different words. In testifying July 14 she said about the controversial comment:

“I was trying to inspire them [members of Latino groups she was addressing] to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don’t think there is a quarrel with that in our society. I was also trying to inspire them to believe they could become anything they wanted to become, just as I had.”

She went on to say to the senators: “The context of the words that I spoke have created a misunderstanding.”

At a hearing session the next day, she admitted in response to a question from a GOP senator that her “wise Latina” phrase was “a rhetorical flourish that fell flat.”

But even in view of her admission—some might say her apology—the quotation carried what many in America’s minority communities and elsewhere saw as a wealth of insight, especially when read in the context of the full speech she gave at Berkeley. Of course, such insight was lost on many of the judge’s congressional critics: She was denounced as a self-indulgent judicial activist who would make court decisions on the basis of “empathy” rather than the law and as someone who saw herself as imbued with special powers because of her ethnicity and life experience.

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By Willie, June 20, 2011 at 5:32 am Link to this comment
(Unregistered commenter)

You’ve hit the ball out the park! Icerndible!

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By GB, August 8, 2009 at 7:06 am Link to this comment
(Unregistered commenter)

Sotomayor’s road wouldn’t have been so bumpy if the dems would use their majority and start speaking out against the treason that has become the republican party. Obstructionist, corporatist, lying, and hypocricy has become the norm for the conservate movement. The dems should stop appearing on fox because not only do we know that is the network for the republican treason platform but it continues to give republicans fodder to use in their treasonous talk. The judges bush appointed are pure wingnut hacks and they flew through the process like butter.

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By John Hanks, August 7, 2009 at 3:38 pm Link to this comment
(Unregistered commenter)

Given her basically conservative judicial philosophy, I suspect she may be the most tedious and boring justice in the court.  The court should be replaced by an annual jury.

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