Friday, July 10, 2009

Experts Predict Where GOP Will Focus

Where will Republican senators focus their attention in Sonia Sotomayor's confirmation hearings? And, after all is said and done next week, will the GOP seek a delay?

In NationalJournal.com's poll of several Supreme Court observers, the Ricci v. DeStefano discrimination case and the Maloney v. Cuomo Second Amendment case were judged most likely to face scrutiny. The 10 experts in the survey seem to be on the same page as Senate Judiciary Committee ranking member Jeff Sessions, R-Ala., who has included on his list of witnesses two plaintiffs from the Ricci case -- Frank Ricci and Ben Vargas -- as well as former National Rifle Association President Sandy Froman.

The experts are split right down the middle as to whether Republicans will seek a delay. They all agree on one thing, though: The move wouldn't succeed, considering the large Democratic majority.

NationalJournal.com asked the experts to rank what issues, out of the following seven, Republican senators will likely focus on: Ricci; Maloney; the Didden v. Village of Port Chester property rights case; Sotomayor's involvement with a Puerto Rican civil rights group; her "wise Latina woman" comment; her remark that Court of Appeals is "where policy is made"; and abortion.

We then weighted the responses, with seven points for a first-place selection down to one point for seventh place. When respondents didn't rank issues, we simply didn't give those issues a point.

Not surprisingly, Ricci was at the top of most experts' lists: six out of 10, with a total of 58 points. The Maloney case (a three-judge panel opinion Sotomayor sat on that affirmed a lower court's ruling that the Second Amendment doesn't apply to the states) came in second with 49 points. The other race-oriented issues -- her "wise Latina woman" remark and her involvement in the group now known as LatinoJustice PRLDEF -- were the next most popular ones, coming in with 41 and 37 points, respectively. Despite abortion's traditional role as a hot-button judicial issue, it came in last with only 20 points. Most experts listed it last or not at all.

Poll respondents were: Dahlia Lithwick, Slate senior editor; Paul Cassell, University of Utah law professor and Volokh Conspiracy blogger; Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump; Adam White, D.C. lawyer; William Marshall, University of North Carolina law professor; Doug Kendall, founder and president of the Constitutional Accountability Center; Cristina Rodriguez, New York University law professor; Carl Tobias, University of Richmond law professor; Wendy Long, general counsel for the Judicial Confirmation Network; and National Journal's own Stuart Taylor Jr. In order to encourage frank and open speculation, contributors were given anonymity.

After the jump, see experts' explanations for their rankings, divided up by issue, and their comments on whether the GOP will seek a delay.

Ricci:

• "Ricci is the worst, and the most unpopular with voters, and she is the most vulnerable on that, in part for the sweep-it-under-the-rug approach and recent Supreme Court rebuff." (Ranked it first)

• "Ricci hits on their [Republicans'] issues with her without having to spell them out: she's allegedly racist, she's sloppy (summary disposition) and she's 'activist,' whatever that means." (Ranked it first)

• "Some senators might try to push the point that the Supreme Court reversed Sotomayor in this case, but the fact that the Supreme Court articulated a new rule in the case, and that the court itself was deeply divided, will make it harder for them to get traction on the point. But the case could also be used as a way into her views on affirmative action and civil rights." (Ranked it first)

• "Ricci seems like red meat, but she'll defuse it by claiming an inability to answer such questions." (Ranked it third)

Maloney / gun rights:

• "This is the only issue that seems to have a real profitably political payoff for the Republicans." (Ranked it first)

• "The gun case is a pretty weak reed for Republicans to lean on, on the merits, but they will flog it simply because so many voters in swing states care about gun rights." (Ranked it second)

• "She was on a panel that found that the Second Amendment does not apply to the states -- an issue certain to come before the court given its recent decision in [District of Columbia v.] Heller. And given the importance of this issue to Republicans, this topic may well appear. But, because it's likely to come before the court, she can dodge it by saying she can't pre-judge the case." (Ranked it fourth)

"Wise Latina woman" remark:

• "The 'wise Latina' quip is... useful, although I suspect that many GOP senators will not want to alienate Hispanic voters by focusing too much attention on that line." (Ranked it second)

• "All of these are important issues, but the GOP seems to have chosen race as its focus." (Ranked it second)

• "This smacks of racial favoritism, which might gain some traction with independents." (Ranked it second)

• "This comment has received so much attention that it's hard to imagine someone won't ask her what she meant and how her views on race and biography will affect her judging." (Ranked it third)

• "Democrats will take refuge in the sleazy suggestion that such criticisms are anti-Hispanic. One good way for Republicans to exploit 'wise Latina woman' would be to quote her complaints to the New York Daily News after her 1998 confirmation about how Republicans had stereotyped her as liberal because of her gender and ethnicity." (Ranked it fourth)

PRLDEF involvement:

• "I think PRLDEF will be for the GOP what CAP [Concerned Alumni of Princeton] was for the Democratic senators in the [Samuel] Alito confirmation battle. They will look at statements made by representatives of PRLDEF and in PRLDEF's briefs during Sotomayor's tenure on the board and seize on these as the way to bring her down, realizing only too late that this 'guilt by long-ago association' game only makes them look silly and petty." (Ranked it first)

• "All of PRLDEF's documents during the time Sotomayor was on the board have been subpoenaed, and her service on the board provides a good hook into questions about race, civil rights, identity politics (which is out of favor), and affirmative action." (Ranked it second)

• "Republicans can... score some valid points by detailing the ultra-liberal record of the PRLDEF; but she can say that she was just a board member who did not necessarily personally subscribe to every argument the organization made." (Ranked it fifth)

Didden property rights case:

• "Hard to get folks to man the barricades in defense of property owners, although what Sotomayor did in this case is indefensible." (Ranked it fifth)

Comment that the Court of Appeals is "where policy is made":

• "This speech has gotten very little traction, from what I can tell, which has surprised me. Perhaps it's because, in context, it was a candid, self-aware remark about the fact that judging often involves the use of judgment -- something that is all the more true at the Supreme Court level. This comment is relatively easy to spin away from the conclusion that she just applies her own opinions when deciding cases, so I don't think it will do much damage. But it is a counterpoint to Chief Justice [John] Roberts's 'umpire' metaphor, so perhaps it will come into play." (Ranked it sixth)

• "'Where policy is made' is a weak line of attack. She can explain, quite correctly, that this was a reference to the interstitial policymaking in which appellate judges inevitably engage when called upon to resolve ambiguities in various laws that cannot be resolved simply by 'applying the law.'" (Didn't rank it)

Abortion:

• "The base is interested in this." (Ranked it third)

• "Because she is replacing Justice [David] Souter, her vote will not affect the balance of the court on abortion decisions, unless she turns out to be unexpectedly conservative on the issue. She has no real paper trail on this issue, either. It has been overshadowed by all of the race-related concerns. But, because Roe [v. Wade] is a perennial topic in these hearings, a question or two about 'privacy' or 'substantive due process' and the discovery of 'new rights' in the Constitution might appear." (Ranked it fifth)

Will GOP senators seek a delay?

Yes:

• "I think the Republicans will make noise about the need to delay the vote, especially because not all of the PRLDF documents have been made available, but that they will fail and she will be confirmed by Aug. 7. The need for her to participate in the Sept. 9 reargument in the Citizens United [v. Federal Election Commission] case is a strong point for getting her confirmed before then."

• "Highly likely that they will seek delay -- there will inevitably be a few 'loose ends' that arise out of the hearing that will provide a basis for a need for 'further study.' Seems unlikely that they will succeed, however, in a world with 60 Democrat senators."

• "It's a certainty that GOP senators will seek to delay the hearings -- based on recent disclosure of more files -- but they'll get nothing more than a token delay, if any."

• "Probable but unsuccessful. The GOP's only hope of derailing the confirmation is to find a 'smoking gun' and they seem to believe that the more time they have the more likely that is to happen."

• "I expect that the Republicans will complain about the schedule, but it will be posturing and go nowhere. The schedule will instead end up as an objective-seeming rationale for a group of Republicans to vote against her."

No:

• "Seeking a delay is not likely.... I would say only 25 percent."

• "I don't think there will be any drama left after Judge Sotomayor's hearings in terms of whether she will be confirmed and thus I doubt Republican senators will even push that hard for a delay past recess. The court helped Judge Sotomayor's cause here considerably by scheduling oral argument on a huge campaign finance case in early September, giving good reason for the Senate to wrap this up quickly."

• "Unlikely. I don't know what they gain."

• "I would be surprised if the Republicans tried to delay this till September. It would be irresponsible, because she's almost certain to get through, and delaying her confirmation will give her less time to get her chambers up and running for the new term. Timing is particularly important, since the court has added a new, early oral argument on the campaign finance case they did not resolve last term. The Republicans have very little to gain politically from delaying the hearings, though they will (and probably should) attempt to use the hearings to articulate some of their differences with the president and Democrats on key constitutional issues."

• "I think it is fairly likely that senators will seek to delay a final vote because there is so much in her record that is extremely controversial and she still has not provided full information; what she has provided raises more questions than it answers. So yes, very likely Republicans will seek more time, but will not engage in obstructionist tactics to get it."