To some Republican activists, an epic battle over Sonia Sotomayor is just the kind of jolt the Republican Party needs to get out of its doldrums.
But heading into the Supreme Court nominee’s confirmation hearings that begin Monday, top GOP senators are still weighing how big of a fight to wage ahead of votes in the coming weeks on the Judiciary Committee and on the Senate floor.
Their strategy will carry potential benefits and pitfalls. If they mount a vigorous and unified defense, they could energize their base and present a clear vision to the public about their view over the judiciary – but risk backlash from Hispanics and women’s groups eager to see Sotomayor become the first female Latina justice. But if they’re divided and let the fight fizzle, the party will appear splintered on one of the biggest matters to face them since Barack Obama’s election as president – while deflating a GOP base whose major issues of gun rights and abortion are at the heart of Sotomayor’s nomination.
Deciding to mount a forceful opposition could be an easy decision if Sotomayor stumbles during her hearings, GOP senators say. But absent that, the equation gets trickier – and no one wants to be the lone GOP senator to vote in support of her.
A bellwether on GOP opposition is Judiciary Committee member Jon Kyl, the No. 2 Republican in Senate leadership who represents Arizona, a state with a big Hispanic population.
Kyl has raised concerns with the Sotomayor, including over statements she’s made favoring the use of foreign law in guiding decision-making. But he dismisses political fallout for the GOP if his party votes largely against her – and says his vote will strictly come down to her qualifications to sit on the highest court in the land – not her ethnicity.
“It’s not a good idea, I think, to continue to focus on something that on this day and age is just not an issue,” Kyl said. “People aren’t bigoted and biased base on ethnicity. And if they vote for or against somebody, it’s not healthy for the media to infer that the reason for the vote had anything to do other than with the person’s qualifications.”
Asked if there was pressure to stay united, Kyl said: “No, we have no party discipline on this at all. People are entitled to vote however they want to vote.”
Sen. Lindsey Graham (R-S.C.), a more junior member of the committee, predicted that depending on her performance at the hearings, she could get as many votes as Chief Justice John Roberts did in 2005, when he was approved by a 13-5 vote, which included all committee Republicans and three Democrats. But if the GOP believes she did not answer her questions adequately, he said, it could turn into the situation that befell Samuel Alito in 2006 when he was approved by the committee on a straight 10-8 party-line vote.
“I can probably guess there will be a few ‘no’ votes,” Graham said. “The possibility of ‘yes’ votes exists based on how well she does. … I think some of our colleagues will be looking at some of us in terms of how we’ll vote in part on how they make a decision.”
With Democrats holding a 12-7 majority on the Judiciary Committee and a 60-40 advantage in the full Senate, Sotomayor doesn’t need any GOP votes to get confirmed if Democrats stay united. But a party-line vote could damage her perception with the public.
Tom Goldstein, a Supreme Court expert at the law firm Akin Gump, said the confirmation process is “so openly broken” that a party-line vote won’t hurt her standing inside the court.
“But the hearings are her real introduction to the country, so if the perception of her nomination is really politically charged, that could taint the public's perception of her rulings for years.”
The last time a Democratic president nominated Supreme Court justices, Stephen Breyer in 1994 and Ruth Bader Ginsburg in 1993, they were overwhelmingly supported in the full Senate and were approved by the Judiciary Committee on an 18-0 vote. Other than Alito and Clarence Thomas, both nominees of Republican presidents, the other sitting members of the court won wide approval in committee and on the floor, according to the Senate historical office.
For some Republicans, Alito’s lack of Democratic support is still fresh in their minds – particularly since Obama as a senator voted against Alito and supported an unsuccessful filibuster attempt.
“If I used the Obama standard, I’d vote against her,” Graham said. “You’ll hear that sometimes in the hearing.”
Sen. Dick Durbin (D-Ill.), No. 2 Democrat in Senate leadership and Judiciary Committee member, said the Sotomayor situation is different based on her qualifications and approach to the law. And he warned the GOP of political backlash this time around.
“I think if it looks like a mindless opposition just because she’s President Obama’s nominee, I think the Hispanic community will notice that and it won’t sit well,” Durbin said.
But if the GOP lets it go without a fight, they risk angering conservative activists as well.
Charmaine Yoest, head of the anti-abortion group Americans United for Life who is testifying at the Sotomayor hearings, said a strong vote in opposition is about principle – not politics.
“The rank-and-file pro-life people out there are definitely looking for some heroes.”
Sen. Jeff Sessions (R-Ala.), top Republican on the Judiciary Committee, seems aware of the conflicting pressure – especially when it comes to explosive issues of race-based decision-making, an issue certain to be a focus at the hearings.
“I do think it has to be handled correctly,” he said. “I think the American people will respond well if they believe that the Republicans are committed that anyone going onto the Supreme Court is fair and just.”
Sen. Chuck Grassley (R-Iowa), who is undecided on how he’ll vote, predicted that “she will have bipartisan support.” And he said that given Utah GOP Sen. Orrin Hatch’s occasional tendency to defer to a president on nominees, he could be the lone GOP senator to back Sotomayor if the others vote the opposite way.
Asked if he could be the lone GOP vote in support of her, Hatch said: “No, I don’t think that’s the way it’s going to be — we’ll have to see.”
“I won’t vote for her if some of these questions aren’t answered satisfactorily,” Hatch said. “As much as I support Hispanic people, this is for one of the most important positions in the world to me and I think to anyone with brains.”