In the perfect world, Republicans should have no problem taking on Supreme Court nominee Sonia Sotomayor. President Obama's choice to replace Justice David Souter has been a reliably liberal judge on the Second Circuit; her ruling on the New Haven firefighters racial discrimination case seems like low-hanging fruit (indeed, the Supreme Court could overturn that decision before confirmation hearings begin), and she's on record embracing the judical activism and minority politics the GOP abhors.
But while some of those issues will undoubtedly come up, Republicans are unlikely to lay much of a glove on the judge. Why? Because while judicial appointments should be argued over questions of the Constitution and legal theory, they usually aren't. As Ken Duberstein writes in The Daily Beast, what matters is how the narrative of the nominee is framed before the public and the media. Here, Sotomayor is in a commanding position.
Sure, the narrative can cometimes be turned on the opposition. That's what Clarence Thomas did to great effect in 1991. After the Anita Hill story broke, Thomas declared in the hearings that he was the victim of a "high-tech lynching." With Alabama Sen. Howell Heflin leading the battle against Thomas in an accented voice that seemed to come from the old South, the words stung. Democrats were thrown for a loop.
The Sotomayor hearings aren't likely to have a moment like that. Republicans will be mindful that the judge is not only a lady, but a Latina. She represents two voting blocs that the GOP desperately wishes to cultivate, not alienate. No wonder RNC Chairman Michael Steele was uncharacteristically muted in his reaction to Sotomayor:
"You want to be careful," he said when asked about juggling Hispanic outreach with potential opposition to Sotomayor, "You don't want to be perceived as a bully."
Indeed, Steele was mild in his initial jabs, calling Sotomayor an "interesting pick" with "overwhelming political overtones to it."
Perhaps his caution reflects the fact that his party is in one of its most vulnerable positions ever in terms of identity politics. A few days earlier, one of last year's candidates for the Republican nomination for president basically said that having Steele as chairman made the party "immune" to racism charges.
"I think [Steele] has sought to be, first of all, a very strong spokesperson," Mike Huckabee told The Tennessean on Saturday, before speaking at a church service. "I'm not sure anyone else could be as effective in challenging the Obama policies any more so than Michael."
Asked why that's the case, Huckabee answered: "Well, I believe that that no one is gonna be able to use the racism charge."
So, Huckabee says that Steele's race makes it easier for the GOP to go after Obama -- without being called racist, perhaps even implying that race helped in the selection of Steele. Indeed, the comment came not too long after Steele made the claim that Obama wasn't properly vetted by the press because Obama was black. Imagine the impact of a white chairman saying that.
And so, an otherwise heavily white party finds itself hamstrung in launching what could be considered completely legitimate lines of attack on a Supreme Court nominee. Even in the best of circumstances, given the GOP's depleted numbers in the Senate, this would be a losing battle. Throw in the demographic element and it looks downright hopeless.
Heck , the GOP doesn't even have a female senator on the Judiciary Committee which will be questioning Sotomayor (there are two female Democrats on the committee). So, recognizing that they don't have a Senate conference that -- to use Bill Clinton's phrase -- "looks like America," Senate Republicans will have to tip-toe around a Supreme Court nominee they might otherwise would love bring down.
Robert A. George is a New York writer. He blogs at Ragged Thots.