Politics, race and the Supreme Court

The U.S. Senate has confirmed Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter. In a 68–31 vote, nine Republicans joined a unanimous Democratic caucus to support her nomination. She becomes the first Latina and the third woman to serve on the high court. Professor and Chair of Political Science Katy Harriger reflects on the confirmation process and what impact Sotomayor may have on the high court’s future decisions. Harriger is currently researching issues concerning race and the Supreme Court, in particular the court’s evolution from unanimous decisions concerning race to the current 5-4 split decisions that characterize the court today.

Did anything about the confirmation process for Judge Sotomayor stand out to you?

For judges with the length of service of Sotomayor, I would have expected much more attention to her judicial record. The fact that there was so little there to provoke controversy no doubt led to the decision of opponents to focus on her speeches. I also found it interesting that some opponents based their opposition to her on President Obama’s statement that he wanted to select judges who exhibited “empathy” — a characteristic that seems both fairly innocuous and generally desirable in anyone engaged in judging. The opposition sought to turn this into a bad thing that somehow became a “code word” for liberal activism.

Were you surprised by the Republican Senators’ reaction to Sotomayor?

I didn’t find the opposition particularly surprising. Nomination battles have become extremely partisan over the last 30 years and that partisanship has been enhanced or encouraged by the attention that powerful interest groups pay to who is on the court and by the fact that the hearings get a considerable amount of media attention. That means there are built in political incentives for each side to seek to mobilize their constituencies through the process. I’m sure if you read the e-mails and mailings from these groups, both liberal and conservative, you would be led to believe that the fate of the republic was hanging in the balance. Of course, the truth is far from that — a single Supreme Court justice just does not have that kind of influence in politics.

On the other side of the coin, nine Republican Senators broke ranks and voted for her confirmation; were you surprised?

The Republican Senators going against their party are a more interesting bunch and I think their motivations vary. Some, from “blue” states where the likelihood of support for Sotomayor is fairly high, are probably making a political judgment that they should support her. Others, like Lindsey Graham of South Carolina, make for a more interesting case. He is a veteran of these battles and seems weary of the conflict, hoping that some showing of bipartisanship might contribute to getting past the polarization of judicial nominations.

You’ve said that every new judge changes the chemistry of the Supreme Court. What do you think will be the effect of Sotomayor’s presence on the court?

It’s always difficult to predict the impact, in part, because new issues arise that the judge being replaced never had to deal with. In addition, we know from studies of small group behavior — and the Court is certainly a small group of nine individuals — that each person matters and plays a role within the group. A new person with a different personality, one that appears to be considerably more assertive than Justice Souter’s, will inevitably have some impact on the group dynamics.

The issue of race has been prominent in Sotomayor’s confirmation hearings. How do you see this nominee in light of your current research on race and the Supreme Court?

The court is currently closely divided on the issue of race. In two recent 5-4 decisions it has struck down efforts by local governments to use race as a criteria for keeping schools integrated and having diverse leadership in a fire department. The fault line on the Court is between four justices (Roberts, Alito, Scalia and Thomas) who think the law must be “colorblind,” allowing no consideration of race, and four who think governments may consider race in order to promote diversity and integration (Souter, Breyer, Stephens and Ginsburg). Justice Kennedy in both decisions voted with the “colorblind” four, but wrote separately to suggest that diversity and integration were legitimate constitutional values and that his membership in the majority was based on the particular factual situations that were presented. This means it might be possible that a more assertive Sotomayor and a different factual situation might lead Kennedy to join the other group. It will be interesting to watch future cases in this area.

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