courting race on the court."All of these folks are capable or they wouldn't have been considered for confirmation," offers Mathew McCoy as we start our discussion of Judge Sonia Sotomayor's ongoing confirmation to replace Justice David Souter on the Supreme Court. Sitting in his COCC office, I have obviously come to the right person for an insider's perspective on the process. McCoy witnessed the 27th failed nomination to the Supreme Court in our country's history, and the most virulent - personal and political - attacks on otherwise qualified and respected judges.
In addition to his duties as Vice President of Administration of COCC, McCoy teaches political science and offers a longview of all he experienced, especially regarding Robert Bork's failed nomination in 1987. "It was the origination of the term 'being Borked.' That, more than any other confirmation hearing that I've been involved with, whether it was an Appellate Court, Federal Appellate Court, or Supreme Court, that was the first time that raw politics entered into the confirmation process at an obvious and high level. There were support groups, beyond those that were working in the Senate, that saw this as a cause celeb, and therefore, devoted time, energy, resources to either strongly advocating or strongly opposing the nomination of Judge Bork. And quite a bit of it was emotional, because it centered around the right to privacy and Roe v. Wade, and abortion is such a hot button issue because everyone has an opinion... For all of his great intellectual ability and judicial prowess, Judge Bork was unable to look at things from a political perspective."
While finishing his J.D. at the University of Arizona College of Law in the mid-1980s, McCoy was a Legal Fellow for the U.S. Senate Judiciary Committee, working for Arizona Democratic Senator Dennis DeConcini, and watching the inner-workings of the Constitution Subcommittee, then later serving as the primary advisor to the Chairman of the Patents, Copyrights & Trademarks Subcommittee, and the Juvenile Justice Subcommittee. In working for such important committees of the Senate, McCoy had unusual yet apt experience-He paid for college by fighting fires as a smokejumper, based out of Redmond, which is why he and his family ended up back in Central Oregon.
Still, few were prepared for what was to come. The Reagan and George H.W. Bush eras have had a lasting impact on the Supreme Court and the confirmation process as a whole, highlighted by the infamous failed nomination of Judge Bork, then the equally chaotic confirmation of Justice Clarence Thomas (Anita Hill, pubic hairs on Coke cans et al). Others went more smoothly, including Justices Kennedy, Souter and Ginsberg's successful nominations.
"Judge Thomas was probably the weakest nomination that came to the Senate in recent times, yet the politics of the day prevailed because the Democrats couldn't oppose Justice Thomas in the same way they could Judge Bork," McCoy said.
When asked if this was racial-Thomas being black and Democrats unable to cross the racial divide to oppose his nomination based solely on credentials-McCoy affords, "A part of it was, certainly."
Race has again entered the process, and Judge Sonia Sotomayor's ethnicity seems the sole area of attack for Republicans. Certainly, President Obama's mixed ethnicity makes the war of words both convenient and difficult for all sides involved. Presently a federal judge on the U.S. Court of Appeals for the Second Circuit, Sotomayor is being called Puerto Rican, despite being born in the Bronx of Puerto Rican descent. She was one of 20 total Latinos admitted to Princeton University as an undergrad, and on a full scholarship, receiving her J.D. from Yale. Hers is an American success story, yet comments she made a decade ago, inferring that a Hispanic woman may make better decisions than a white man, have filled the headlines, and invariably taken totally out of context. Rush Limbaugh has described her as "an ultraliberal who was on a 'rocket ship' to the highest court."
It's impossible to separate Sotomayor's racial background from her nomination, it's part of the reason why conservatives have latched onto her past statements, while sparse, about the issue. And regardless of her achievements as a judge and a scholar there are those who see her selection as affirmative action in its most visible and objectionable form. Alternately, it could be seen as a political move by Obama to offer a token gesture to Hispanics, the fastest growing minority group in the country. But both of those views oversimplify, said Daniel HoSang, an assistant political science professor at the University of Oregon.
HoSang, who specializes in the study of the role of race in politics, cautions against ascribing too much weight to Sotomayor's ethnicity.
"I think all appointments have those symbolic dimensions, but I think it would be wrong to interpret it as simply a pragmatic move. You could argue that [Clarence] Thomas was more of that and that he was plucked a little more from obscurity," HoSang said.
Republicans have every reason to be nervous, and will fight this nomination with whatever means they have. David Souter was nominated by the Republican President George H.W. Bush, after all, and his replacement is up to Democratic President Barack Obama.
"One of the benefits of being President is you get to nominate Supreme Court justices." explains McCoy, "And by having the court reflect your particular political views, you get to influence the future of the United States. And, because the United States tends to have influence internationally, you as the President have the opportunity to affect generations."
Though many take joy in the fact that George W. Bush is no longer President, his two successful additions to the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito, are both young and will serve for some time to come. Bush lives on, on the Supreme Court certainly, and Democrats are looking to balance the mostly conservative leanings of the present court.
"The general public that voted for Obama tend to think that now is their time, the opportunity for Obama to place justices on the court to make it a more progressive court," details McCoy, pausing to offer his personal opinion of the current nominee, ever with an air of the long-term implications. "Someone asked me recently, do I think Judge Sotomayor was a good choice? I don't think it's that simple, I don't think it's good or bad."
HoSang echoes that idea. He said Sotomayor's moderate to conservative judicial record says as much about the political climate as anything else. In other words, her nomination is significant for what it isn't.
"I think it's notable that his appointment is not the liberal counterpart to Roberts. My guess is that [Obama] would be vulnerable to the charge of playing the same old politics." And that's something Obama has been careful to avoid.
McCoy's unwillingness to stereotype any nominee comes with a broad understanding that nominees tend to change once on the Supreme Court. And Sotomayor's background, combined with a long record of rulings and opinions, should at least placate irate Republicans. It was Republican President George H.W. Bush who nominated Sotomayor to the U.S. District Court in 1992, and her rulings show a moderate, business-friendly, scholarly approach to upholding the Constitution. Based on her rulings, Sotomayor may not be the 'ultraliberal' that Republicans are presently branding her as: On abortion, she sided with the Bush Administration's "Mexico City Policy" to no longer use federal funds to promote contraception or family planning activities abroad, writing in her decision, "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds." She has upheld the NFL's monopoly and frequently sided with business and commerce on the highly visible Second Circuit in New York City.
This is a new political climate, though, where paybacks are harsh and highly public - Remember Harriet Miers, Dubya's chief legal council who was floated briefly for the Supreme Court before disappearing altogether? Even if you've forgotten her, few Republicans have forgotten being Borked by Democrats (and current VP Joe Biden, specifically, who led the fight to oppose the nominee at the time). And all eyes are already on the next nominee; Ruth Bader Ginsberg is rumored to be thinking of retiring from the Supreme Court soon. The shift is clear, Obama may be nominating yet another justice - a critical additional that may flip the court from conservative to moderate, even liberal - making the uproar over Sotomayor pale in comparison to the next nominee.
"When I first went and worked in the Senate, which was 1985, there was much more bipartisanship," reflects McCoy. "The goal was to achieve good outcomes that would benefit the country. And when I left the Senate, Congress tended to be much more confrontational and much more partisan, and the merits of the outcome weren't as important as the politics of the outcome. And it's that way today, unfortunately. I think we all lose."
So, other than her race, gender, and the party of the President nominating her, what could Republicans have against Judge Sonia Sotomayor? More importantly, what do they have on her, like Bork's video rentals or Thomas's Anita Hill, which will derail her full confirmation?
In answering, McCoy keeps it vague but intentionally direct.
"There are these lists that are compiled, by the Republicans, by the Democrats, by the ACLU, by the American BAR Association, by the pro-life, by the pro-choice, to help in the selecting, and doing the leg-work behind the scenes, to make sure potential nominees were vetted, that their skillsets and abilities were confirmed. Now, there's probably never direct contact made, because Judges tend to be somewhat isolated so they can make clear, independent decisions. But all of those organizations involved are looking at who might influence the outcome of a Supreme Court nomination."
To this, I ask if they do credit checks, adding in jest if they look for overdue library books? And McCoy just smiles as he says, "All of it. And discretely."