Sunday, July 12, 2009

Nomination Watch: Pols, Polls Divided as Hearings Begin

      On the eve of Senate confirmation hearings for Supreme Court nominee Sonia Sotomayor, Democrats are highlighting her advance from housing project to federal bench while Republicans are promising a thorough examination of her judicial decisions and legal views.
      Meanwhile, public opinion polls over the past month indicate some fluidity in attitudes toward the longtime federal judge nominated by President Obama in May to be the first Latina to serve on the court. A CNN poll, available here released on Friday (July 10) showed a narrow plurality of respondents favoring Sotomayor’s confirmation: 47 percent to 40 percent.
      By contrast, a Rasmussen survey completed on June 30, available here showed a narrow plurality opposing her confirmation: 37 percent to 39 percent. That telephone poll was taken immediately after the Supreme Court reversed the high-profile ruling in the New Haven, Conn., firefighters case that Sotomayor had joined as a member of the Second U.S. Circuit Court of Appeals.
      Sen. Jon Kyl, an Arizona Republican said to be helping mastermind the GOP strategy on the nomination, promised that Republicans will be thorough but fair in the hearings, which are set to begin at 10 a.m. on Monday (July 13.) “The strategy is to be as thorough as we can in examining her record, what she has said, and to conduct the hearing in a fair, impartial, and thorough way and then make our decisions,” Kyl said on ABC This Week.”. He went on to cite the Rasmussen survey as an indication that the hearings will be “very important for [Sotomayor] to demonstrate that she should be confirmed to sit on the Supreme Court.”
      Appearing on the same program, Senate Majority Whip Richard Durbin of Illinois voiced confidence about the outcome. “She has a compelling life story,” Durbin said. Durbin described Sotomayor as “a moderate and restrained jurist” and “an exceptional person.” “I believe she’s going to do well,” he added.
      With a 60-vote Democratic majority in the Senate, Sotomayor’s confirmation is regarded as assured, even by the conservative groups who have been waging a campaign against her. To date, three Republican senators have said they will vote against confirmation: Sam Brownback and Pat Roberts, both of Kansas, and Oklahoma’s James Inhofe, according to CQ Politics’ Legal Beat.
      In the run-up to the hearings, the Senate Judiciary Committee released a witness list that begins with members of the American Bar Association’s Standing Committee on the Judiciary followed by 15 witnesses selected by Democrats and 14 by Republicans. The ABA committee gave Sotomayor its highest rating of “well qualified” in an evaluation released on June 1.
      The Democratic witness list is heavy with veterans of traditional civil rights and minority groups. But it also includes law enforcement representatives, including former FBI Director Louis Freeh and Sotomayor’s former boss, the veteran New York district attorney Robert Morgenthau.
      The Republican list includes advocates from gun rights, anti-abortion and conservative civil rights groups as well as several well known conservative law professors. But the witness attracting the most attention in advance is Frank Ricci, the New Haven firefighter who was the first-named plaintiff in the reverse discrimination suit filed after the city’s civil service board discarded the results of a promotions exam because white applicants outperformed African American candidates on the test.
      The Supreme Court’s June 29 decision in the case, Ricci v. DeStefano, upheld the suit, finding that the city’s decision to throw out the test results amounted to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964. The 5-4 decision rejected the rulings by the district court and the Second Circuit panel that the city’s action was legal because it was seeking to avoid potential liability for unintentional “disparate impact” discrimination against the black applicants.
      With Ricci set to be in the national spotlight, news organizations began reporting — and liberal organizations helped to publicize — that Ricci, who has dyslexia, was hired by the New Haven Fire Department in 1995 only after filing a suit claiming he had been illegally rejected because of discrimination on the basis of his learning disability. The suit had been reported by the Hartford Courant at the time, but had gone unnoticed as the firefighters’ reverse discrimination suit moved through the courts over the past five years.
      The liberal news site Talking Points Memo closed a report on the information with a sharp critique, saying Ricci’s legal views “seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.” In a sharp response on National Review Online, Jonathan Adler, a conservative law professor at Case Western Reserve University, responded, “I suppose the politics of personal destruction has become part of the 'American way.' ”
      In another development, the liberal Brennan Center for Social Justice at New York University School of Law released a detailed study of Sotomayor’s rulings on constitutional issues. The study concludes that Sotomayor’s decisions show her to be a “mainstream” jurist, not a judicial activist.
      Separately, a study by the Transactional Records Access Clearinghouse, a group specializing in statistical compilations of government record, reported that in her six years a federal trial judge, Sotomayor was somewhat more likely than her colleagues to sentence criminal defendants to prison. The study, available here , shows the difference was most pronounced in white-collar crime cases.

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