Tom Goldstein of the SCOTUSblog has been right about Sonia Sotomayor pretty much every step of the way. He has also studied her writings extensively.
Therefore it is worth taking a look at the four probably lines of attack that he foresees the right attempting in the following weeks against Sotomayor. (Note: Goldstein wrote this early this morning, before anyone knew for sure it was Sotomayor. Yeah, he’s that good.)
Goldstein wrote that he doesn’t think Republican lawmakers will join in on these attacks because it is very unlikely Sotomayor will have difficulty getting confirmed. Instead, right wing groups – like the Judicial Confirmation Network – will try to lob bombs.
More, Republican senators won’t want to be seen as attacking the first Hispanic nominee to the high court. Republicans will likely hold their fire for President Obama’s next nominee, much as Democrats did when they pretty much gave Chief Justice John Roberts a pass. Democrats then fired away at Samuel Alito.
Here are Goldstein’s four potential lines of attack
1. Sotomayor is not smart enough for the job. “This is a critical ground for the White House to capture,” Goldstein writes. “The public expects Supreme Court Justices to be brilliant.” (See what happened to Harriet Miers…)
Goldstein says there is nothing to back up Sotomayor being less smart than the other justices on the court.
2. Sotomayor is a liberal ideologue and “judicial activist.”
Goldstein says Sotomayor’s previous opinions suggest she will be in the mold of David Souter.
3. Sotomayor is “unprincipled or dismissive of positions with which she disagrees.” Here is the fodder for that argument:
The three pieces of evidence initially cited for that proposition will be (i) the disposition of the Ricci case (in which a panel on which Sotomayor sat affirmed the dismissal of white firefighters’ claims in a very short and initially unpublished opinion), (ii) a panel appearance in which she acknowledged that appellate judges effectively make policy, and (iii) a speech in which she talked about the role of her gender and ethnicity in her decision making.
Seems to me this will be the most likely attack. Goldstein says the “reeds are too thin” for that characterization to take hold.
“The public neither understands nor cares about the publication practices of the courts of appeals,” Goldstein writes. “There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.”
And 4. Sotomayor is difficult to be around. Goldstein writes:
“Judge Sotomayor’s personal remarks will resolve this question for the public, to the extent it cares at all. But there isn’t any reason to believe that she is anything other than a tough questioner. My impression from her questioning at oral arguments is that it is similar to the Chief Justice, Justice Scalia, and (in cases in which he was particularly engaged) Justice Souter.”
In other words, as Goldstein writes, Sotomayor is a lock for confirmation.