With a newly minted sixty-vote Democrat majority in the US Senate, the approval of the nomination of Sonia Sotomayor to the Supreme Court is all but assured.
But what isn't assured is that it won't cost the Democrats something before all the dust settles. And that's up to the Republicans.
Do they have what it takes to make her positions on hot-button issues so toxic that the Democrats from "purple" or "red" states who support her will find themselves in political hot water back home?
Her record represents just such an opportunity.
Before becoming a judge, Sotomayor was a leader of the Puerto Rican Legal Defense and Education Fund (PRLDEF), even serving as the Chairman of its Litigation Committee. And there we get a glimpse of some of the issues she was willing to lend her support to.
On abortion: On two separate occasions, the PRLDEF filed briefs arguing that taxpayer dollars must be used to fund abortions and further argued that restrictions on abortion were analogous to slavery. They also argued against such modest abortion restrictions as parental notification or waiting periods on abortion.
On the death penalty: Sotomayor signed on to a statement by the PRLDEF opposing the reinstatement of the death penalty in New York state, arguing that capital punishment creates "inhuman psychological burdens" for the offender. (I'm sure the family members of victims feel the same way.)
On bilingualism: The PRLDEF filed several suits to force the provision of bilingual services, including bilingual election ballots. In one case, they even argued that the education system didn't meet the needs of immigrant students because their non-citizen parents couldn't vote in school board elections.
Since becoming a federal judge in 1992, Sotomayor has remained true to her liberal roots.
On property rights: In Didden vs. Village of Port Chester, she joined an opinion that dramatically expanded the government's authority to seize private lands under eminent domain.
On Second Amendment Rights: In Maloney v. Cuomo, she joined an opinion that decided that the Second Amendment did not apply to the states, and in the US vs. Sanchez-Villar, she added insult to injury by joining an opinion that concluded that "the right to possess a gun is clearly not a fundamental right."
On Self-defense rights: When questioned in the confirmation hearings about how courts cannot see the explicitly stated Second Amendment "right to keep and bear arms" as fundamental, yet can hold as fundamental the unexpressed right to privacy (read: abortion), Sotomayor answered: "Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one."
On racial preferences: In the case of Ricci vs. DeStefano, she sided with a city that denied promotions to white firefighters because they performed better than minorities on a test designed to determine who should be promoted. The Supreme Court just overturned the decision in this case a few weeks ago.
On gay marriage: In her confirmation hearings, Sotomayor refused to recognize the 1971 Baker vs. Nelson case as a binding Supreme Court precedent that would forbid the recognition of gay marriage at the federal level, which is a good indication that she can't be counted on to uphold the constitutionality of the 1996 federal Defense of Marriage Act. But she's fine with recognizing Roe vs. Wade as a "binding" precedent on abortion.
On impartiality: In a 2002 speech at Berkeley, she stated that she believes it is appropriate for a judge to consider their "experiences as women and people of color", which she says should "affect our decisions". She went on to state that "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." She repeated this line on at least five other occasions.
On judicial activism: Sotomayor was caught on video stating that "the Court of Appeals is where policy is made", suggesting her comfort with judicial encroachment on legislative turf.
Further, thanks to her confirmation hearings, we got a better look at her philosophy when she stated: "The task of a judge is not to make the law - it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court."
Note that she mentions the importance of "intent" when interpreting congressional statutes, but not the Constitution, which is right in line with the liberal philosophy of a "living Constitution". Which is liberal-speak for a Constitution we can change by judicial fiat without having to go to the political trouble of amending it.
Each of these issues represents an opportunity for Republicans to put Democrats from "purple" or "red" states on the wrong side of their voters back home. That is, if they have the courage to make point them out and make the case to the public.
We're not just talking about press releases here. We're talking about interviews and floor speeches that make the evening news, highlighting how out of step her positions are with mainstream America. You know, the kind of high profile opposition that the Democrats brought against Robert Bork. Only true in this case.
Americans will have to suffer her presence on the Court for years, if not decades to come. The least we should be able to ask in return is the possibility of softening up a handful of Democrats' re-election prospects in the process.
