The American Debate: Why GOP can't block Sotomayor

Unless Senate Republicans manage at the eleventh hour to unearth a juicy revelation about Sonia Sotomayor - perhaps by proving that she's the biological mother of Michael Jackson's children - they're not likely to lay a glove on her during the confirmation hearings that begin tomorrow.

In fact, by midweek, the hearings may well be trumped in the news cycle by fresh stories about the still-dead status of Jackson. Sotomayor's path to the U.S. Supreme Court seems virtually assured, for a trio of reasons:

THERE'S NO SMOKING GUN. For six weeks, Republicans have looked in vain for an issue that would galvanize the public and compel red-state Senate Democrats to vote against her. The flap over her eight-year-old comment - about how a "wise Latina" jurist might make "better" decisions - basically flamed out a month ago, and a landslide majority of Americans have since told pollsters they support her.

At the hearings, Republicans will surely cite her appeals-court ruling against white New Haven, Conn., firefighters as proof of ethnic "favoritism." But that issue has gone nowhere, perhaps because of statistics the GOP has sought to ignore: As a federal appeals judge, Sotomayor has participated in roughly 90 race-related cases - and has rejected the discrimination claim 80 times.

Republicans have tried to paint her as a radical outside the mainstream, but at the hearings they'll be hard-pressed to explain away the new Senate Judiciary Committee statistics, which show that, as an appeals judge, Sotomayor has voted to uphold 92 percent of the criminal convictions that have come before her - and that she has agreed with her Republican-appointed colleagues 97 percent of the time.

Some conservative activists think she's vulnerable on guns, because in several cases she failed to endorse an unrestricted right to bear arms. But Republicans will have trouble pressing that hot button, given that Sotomayor has been endorsed by the Fraternal Order of Police, which on Wednesday lauded her as "a model jurist: tough, fair-minded and mindful of the constitutional protections afforded to all U.S. citizens."

In politics, it's never easy to stop something with nothing. When the American Bar Association announces, on the eve of the hearings, that it has given Sotomayor its highest rating ("well qualified," the same ABA grade bestowed upon John Roberts and Samuel Alito), that's a wake-up call for Republicans to counter with something. They're still looking.

THE GOP HAS A FLAWED POINT MAN. Here's a smart strategy: During the Senate Judiciary hearings, the Republican assault on the first Hispanic high court nominee will be led by a white guy from Alabama who in the past has made hostile remarks about civil rights and people of color.

This is yet another sign of the GOP's lowly status as a regional party. The point man, Sen. Jeff Sessions, has been assailing Sotomayor for her past service as a board member of the Puerto Rican Legal Defense and Education Fund, a civil rights group that Sessions has called "extreme." But this is the same person who once attacked the NAACP as a "communist-inspired" and "un-American" group that "forced civil rights down the throats of people."

These remarks came to light back in 1986, when Sessions, a young prosecutor, was himself nominated for a federal judgeship. The senators ultimately rejected his nomination. They also didn't like the fact that prosecutor Sessions had investigated activists who were signing up blacks to vote - and that, according to sworn testimony, he had once addressed a black attorney as "boy."

How can the Republicans go after Sotomayor in a credible fashion with this guy leading the charge? (Actually, in terms of seniority, the lead assaulter would have been Sen. Arlen Specter, had he remained a Republican. He got out just in time.)

THE GOP IS BOXED IN, POLITICALLY. Republicans are already in bad shape with both Hispanic and female voters. It would ill behoove them to be perceived as beating up on a Hispanic female nominee. On national television, no less. As Mark McKinnon, former campaign consultant to George W. Bush, warned not long ago, an assault on Sotomayor would "make the party look bitter, mean, tone deaf, and out of touch."

Undoubtedly, Sessions and his fellow Judiciary Republicans will work to get the tone right. They'll try to press her for specifics about certain rulings and statements, to needle her respectfully, in the hope that she will lose her cool and give them the gift of a sound bite. I doubt she'll take the bait. If she doesn't, it's hard to see what her inquisitors could possibly do next.

Conservative activists have been pushing for an aggressive posture, but elected Republicans would prefer not to commit political suicide. The math is inescapable. Hispanics are the fastest-growing cohort in the electorate, a pivotal group in a growing roster of swing states, including Colorado, Florida, Nevada, New Mexico, North Carolina, and Virginia. Those six states - all previously red - swung to the Democrats in the '08 presidential election, with considerable help from Hispanic voters.

Hispanics favored Barack Obama over John McCain by a whopping 36 percentage points; four years earlier, they had favored the Democratic candidate by only nine points. The best Republican strategists, recognizing the Hispanic trend line, have been warning that the GOP risks losing these voters for a generation - and consigning itself to minority status - unless it can erase its image of intolerance.

Hence, its fundamental handicap at the Sotomayor hearings. If the GOP gives off the vibe that this Hispanic woman is ill-qualified for the court - no matter how hard she has worked, and how high she has risen, no matter how many academic honors she has won, no matter how much jurisprudential experience she has acquired - the party will lose far more than just this confirmation battle.

Nominee's judgment is suspect. Kevin Ferris, C5.