David S. Broder: Just say yes to Sotomayor

It is as close to certain as anything gets in Washington that Judge Sonia Sotomayor is on her way to the Supreme Court. What impact she will have there is far harder to predict.

President Barack Obama’s choice to succeed retiring Justice David Souter has everything going for her. The Senate has already confirmed her twice, first when George H.W. Bush named her (at the behest of Daniel Patrick Moynihan) to the district court in New York and later when Bill Clinton elevated her to the U.S. Circuit Court of Appeals.

With her solid record on the bench, with her appealing personal narrative as the daughter of Puerto Ricans who struggled to raise and educate their children with high aspirations and no wealth, and with 59 Democrats poised to vote for her and beat down a possible filibuster, she should have no difficulty clearing the procedural hurdles in time to relieve Souter at the beginning of the October term.

The main question about her confirmation is the choice it presents to Republicans. They are unlikely to defeat or even delay her elevation. If they mount a vigorous effort to challenge her, as some of their interest group supporters wish, they risk doing further damage to their party with the largest minority group in the country – Hispanics. The loss of Hispanic support that John McCain, by far their most credible candidate in the eyes of Latinos, suffered in 2008 as a consequence of Republican legislators’ adamant opposition to comprehensive immigration reform alarmed most intelligent Republican strategists.

While most of the organizations that purport to speak for the conservative base immediately condemned Sotomayor and called on the GOP to oppose her, I think it’s likely that many and perhaps most of the 40 Republicans left in the Senate will acquiesce in her appointment. Their initial comments were cautious. Before joining the general call for “a fair and thorough process” of examining the judge’s credentials, retiring Republican Sen. Mel Martinez of Florida signaled to his colleagues that they’d better tread carefully.

Martinez, the only Latino Republican in the Senate, said he took “great pride” in her selection. Her “personal life story is one of great accomplishments and a source of inspiration. It also demonstrates the great opportunities our nation has to offer,” he said.

Another important clue came from Larry Klayman, the founder of Judicial Watch and other organizations that have provided raw material for Republican judicial battles. His statement said: “While I would have liked to see a more conservative libertarian type on the high court, President Obama’s selection of … Sotomayor was a very prudent and wise decision from a far left liberal like Obama. … Sotomayor has previously pledged to follow the Constitution, and not legislate from the bench, and her career as a federal court judge suggests, as a whole, that this is the way she will administer to the law.”

As against such cautions, Republican senators are being urged by the conservative interest groups to consider scattered statements Sotomayor has made – and at least one controversial decision.

The New Haven firefighter case, now pending before the Supreme Court, is one where Sotomayor was part of a three-judge panel that upheld a lower court decision voiding a promotion test which would advance no black firefighters. It appears, on the face of it, to be an extreme application of affirmative action doctrine, and she will undoubtedly be pressed to explain and justify her decision.

The speech quotes the conservatives have unearthed are far less damaging, when viewed in context. Her use of the word “policy” in describing what appellate courts make was perhaps imprecise, but no worse than that. And her lauding the ability of “a wise Latina woman” to use her experience to make wise judgments on the bench was perhaps self-serving but hardly an indication of a closed mind.

I have to believe that many Republican senators will seize the opportunity Obama has provided and prove they are not as narrow-minded as their most extreme backers. And then hope that like a mirror image of Souter, Sotomayor will surprise the world by some of her votes.