What If It's No Contest?

By Dan Froomkin
1:05 PM ET, 05/27/2009

Here's an interesting question: What will we all do if Sonia Sotomayor's Supreme Court nomination inspires a completely lopsided debate -- with only professional right-wing noisemakers and extremists actually arguing that she shouldn't be confirmed?

It could be a cakewalk.

David Jackson blogs for USA Today: "The prospects for confirmation of Supreme Court nominee Sonia Sotomayor seem to get brighter and brighter - the top Republican on the Senate Judiciary Committee appeared today to rule out the prospect of a GOP filibuster.

"'I don't sense a filibuster in the works,' Sen. Jeff Sessions said this morning on CNN.

"The Alabama Republican said Sotomayor 'has serious problems' in his view, but added that everybody wants to 'have a good hearing, take our time, and do it right. And then the senators cast their vote up or down based on whether or not they think this is the kind of judge that should be on the court.'"

Even Fred Barnes of the Weekly Standard puts Sotomayor's chances at 95 percent.

It's not just her qualifications, though they are considerable.

Shailagh Murray and Michael D. Shear write in The Washington Post that Sotomayor's status as the first Hispanic nominees is "creating a difficult political equation for Republicans as they weigh how aggressively to fight her appointment.

"An all-out assault on Sotomayor by Republicans could alienate both Latino and women voters, deepening the GOP's problems after consecutive electoral setbacks. But sidestepping a court battle could be deflating to the party's base and hurt efforts to rally conservatives going forward....

"Senate Republicans responded with restraint to the announcement yesterday, and their largely muted statements stood in sharp contrast to the fractious partisanship that has defined court battles in recent decades....

"Sen. Charles E. Scjahumer (D-N.Y.) said of his GOP colleagues and conservative activists who are leading the court fight. 'I think this process is going to be more a test of the Republican Party than of Sonia Sotomayor.'"

Peter Wallsten and Richard Simon write in the Los Angeles Times: "Rush Limbaugh called her a 'reverse racist.' The conservative Judicial Confirmation Network said she carried a 'personal political agenda' and should be blocked from the Supreme Court.

"But beyond such heated criticism, commonplace in partisan court battles, the nomination Tuesday of Sonia Sotomayor to the high court brought a surprisingly muted response from the Republican senators who will actually vote on it....

"[S]ome party strategists are telling GOP senators that attacking Sotomayor would waste an opportunity for Republicans to appear welcoming to Latino voters, many of whom turned away from the party in recent years because of conservative support for tough immigration restrictions and GOP opposition to legalizing undocumented workers."

David Greenberg writes in a Los Angeles Times op-ed: "Starting in the late 1960s -- when the expansive jurisprudence of the Supreme Court under Chief Justice Earl Warren became a lightning rod for political controversy -- fierce ideological clashes over high court nominees have become the norm...

"The side that wins tends to wage an ideological battle without being perceived as ideological. So far, Obama seems to be way ahead."

Jess Bravin and Nathan Koppel write in the Wall Street Journal: "Judge Sonia Sotomayor has built a record on such issues as civil rights and employment law that puts her within the mainstream of Democratic judicial appointees."

David G. Savage and Christi Parsons write in the Los Angeles Times that Sotomayor's "moderate-to-liberal record is unlikely to trigger an ideological battle in the Senate....

"Her most controversial decision appears to be a two-paragraph, unsigned opinion last year in a racial bias case.

"A three-judge panel that included Sotomayor upheld a lower court order that tossed out a lawsuit by white firefighters in New Haven, Conn., who had good scores on tests used for promotions. The firefighters sued the City Council after it dropped the test upon learning that it indicated that no blacks had qualified for promotions.

"'We are not unsympathetic to the [white firefighters'] expression of frustration,' the appeals court said. But the city, 'in refusing to validate the exams, was simply trying to fulfill its obligations under the [Civil Rights Act] when confronted with test results that had a disproportionate racial impact.'

"Dissenting judges on the full appeals court accused Sotomayor and her colleagues of ignoring the real issue. They said the white firefighters were denied promotions because of their race, a clear violation of civil rights laws.

"The Supreme Court agreed in January to hear the white firefighters' appeal. If the justices overrule Sotomayor's decision, it will be an embarrassment for her before her confirmation hearing. But White House lawyers said it would be hard for her critics to make a major controversy out of an unsigned two-paragraph opinion."

Jay Newton-Small writes for Time that "the GOP knows it has been dealt a bad hand, and it's playing for time.

"Time, after all, is what the party needs if it has any hope whatsoever of uncovering some kind of silver bullet — buried somewhere in the 17 years of Sotomayor's federal judicial writings — that could help sink her nomination."

But Robert Reich blogs for TPM Cafe: "Still, never underestimate the Republicans' capacity for taking big political risks that turn out badly. Remember Sarah Palin? Republicans may figure that they're so badly decimated already, so marginalized and irrelevant, there's little to lose and possibly much to gain by going negative on Sotomayor and unleashing their terror-TV and rant-radio attack dogs. It's also possible that without much remaining of any moderate view inside their own ranks, Republicans may simply lack the wisdom -- dare I call it judiciousness? -- to opt for a more sensible strategy."

Chris Cillizza of The Washington Post has some suggestions for the GOP: "If the ultimate goal for Republicans is to defeat Obama in 2012, then the Sotomayor pick presents them with a golden opportunity to cast the president as a traditional liberal -- far from the post-partisan figure he was able to present to the American public in the 2008 election....

"For Republicans to have any chance of defeating Obama in 2012, they must find a way to convince independent voters that the president is far less than advertised on the issue of bipartisanship."

There's a problem with that approach, though. As Cillizza notes: "A Gallup poll conducted in late April to coincide with Obama's 100th day in office showed that two-third of Americans believed he was 'making a sincere effort to work with members of the other party to find solutions acceptable to both parties,' a piece of data that should worry any Republican strategist trying to position a candidate to topple Obama in three years time."

But not to worry, Cillizza writes: "It's never too soon then, from a Republican party perspective, to start building a counter-narrative that Obama may talk a big game on bipartisanship but his actions -- from massive increases in government spending to the Sotomayor pick -- reveal him to be a down-the-line liberal."

Howard Kurtz writes in The Washington Post that the White House employed anonymous briefings as part of its spin campaign -- which even included an online slide show of the nominee.

Kurtz outed the two briefers: Senior adviser David Axelrod and Ron Klain, Vice President Biden's chief of staff.

"'We protest in the strongest terms the Obama administration's frequent use of briefings done on a background basis . . . especially when the same officials briefing often appear ubiquitously on television shows with similar information,' said Jennifer Loven of the Associated Press, president of the White House Correspondents' Association. She said this was particularly true on a Supreme Court nomination, 'when the issue does not involve sensitive material such as national security information.'"

James Rainey writes in the Los Angeles Times: "It's nothing new for an incoming administration, particularly a popular one, to be aggressive about presenting information the way it wants. But the media has an obligation not to play along."

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