Sotomayor Talking Points

I have a feeling this is going to get nasty. I know after the 2004 election, during some of the bleakest times for a Democrat, I was itching for a fight over Roberts. But after surveying the political landscape I regretfully realized the impossibility and inanity of such an act. Well, I think the GOP will do precisely the opposite because they just don't have anyone left who thinks rationally. All they have left is an angry base that is just seething and reeling from the thought of losing their guns and formal wear in the Oval Office.

Such a fight would make them look ridiculous and juvenile. The following talking points should explain why:

GOP Argument 1. Sen. Inhofe has already released a statement saying it's his job "to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."

Talking Points:
-- Neither Republicans nor Democrats made any such offensive suggestion during the nomination of then-Judge Alito by accusing the Italian-American from New Jersey of possibly being biased in favor of mob bosses.

-- Both of President Bush 43's picks had service in Republican administrators. Why didn't Republicans raise concerns about their political preferences clouding their judgments?

-- See also Sen. Lindsay Graham quote below.

GOP Argument 2. A variation of argument 1, but be prepared for language implying "lack of intellect" or things along those lines essentially signaling to the base: "Hey, she's an AA baby."

Talking Points:
-- She has the same education credentials as Alito, longer judicial service than Roberts, and a more varied career than Rehnquist. By any measure, she is more than qualified to sit on our highest court.

GOP Argument 3: Liberal.

Talking Points:
-- Elections have consequences.
-- More specifically, the words of Senator Lindsay Graham during the Roberts Confirmation Hearings apply more than ever:

To me, the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well- qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist.

He's been elected president twice.

He has not hidden from the public what his view of a Supreme Court justice should be and the philosophy that they should embrace.

In my opinion, by picking you, he has lived up to his end of the bargain with the American people by choosing a well-qualified, strict constructionist.

You have been described as brilliant, talented and well- qualified, and that's by Democrats.

The question is, is that enough in 2005 to get confirmed? Maybe not.

Professor Michael Gerhardt has written an article in 2000 called "The Federal Appointments Process," and I think he has given some advice to our Democratic friends in the past and, maybe recently, about the confirmation process that we're engaged in today.

And he has written, "The Constitution establishes a presumption of confirmation that works to the advantage of the president and his nominee."

I agree with that. Elections matter.

We're not here to debate how to solve all the nation's problems. We're not here to talk about liberal philosophy versus conservative philosophy and what's best for the country. We're here to talk about you and whether or not you are qualified to sit on the Supreme Court, whether or not you have the intellect, the integrity and the character.

And it has been said in the past by members of this committee -- Senator Kennedy -- I believe it's recognized by most senators that we're not charged with a responsibility of approving justices if their views always coincide with our own. We're really interested in knowing whether a nominee has the background, experience, qualifications, temperament, integrity to handle the most sensitive, important and responsible job. And that's being on the Supreme Court.

If you're looking for consistency, you've probably come to the wrong place, because the truth of the matter is that we're all involved in the electoral process ourselves and we have different agendas.

*Note that the Democrats at the time seemed obsessed over the Senate's role in thoroughly weighing the nominee.

GOP Argument 4: Supreme Court [will/has] reverse Sotomayor in Ricci.

Talking Point:
-- And the Supreme Court reversed Roberts in Hamdan while he was sitting as the Chief Justice. So what? Frankly, that case had far more significance by defining constitutional limits to the executive war powers, as opposed to the more limited issue of firefighter exams.

GOP Argument 5: She wants to make policy based on her Duke commencement address.

Talking Point:
-- No. And in full context, even conservatives agree she is absolutely right. The Circuit Courts are the most important branch of the federal judiciary because they are the final arbiters ofu the vast majority of issues that arise in federal courts.

GOP Argument 6: She's still racist. See Berkeley Speech.

Talking Point:
-- No. See full quote. And with respect to taking statements out of context, see current Ranking Member Sen. Jeff Sessions during the Roberts hearings: "But as you have already seen, our confirmation process is not a pretty site. Time and again, you will have your legal positions, your predecisional memoranda -- even as a young lawyer -- distorted or taken out of context."

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Feel free submit your anticipated GOP Arguments and talking points.

UPDATE: Here is Judge Sotomayor's full speech at Berkeley. I do not understand how anyone with 3 functioning neurons can take that statement as anything other than a tongue-in-cheek remark given the rest of the speech. Also, I didn't know she was a classmate of our own Prof. RM. And if RM's torts lectures are any indication, the statement was soaked with sarcasm.