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The Supreme Court Kabuki Dance

The battle over Sotomayor is no more than a ritualistic rehearsal.

Watching conservatives work themselves into a lather on cable TV over Sonia Sotomayor is amusing. Supreme Court nominees are almost always confirmed, particularly if the president's party has a decisive majority in the Senate. Plus, Sotomayor is a liberal who would replace a liberal, David Souter.

This seems to make little difference to the noisemakers. Although Sotomayor might well end up somewhat more liberal than Souter on certain issues, we are talking about gradations, not any significant shift in the Court's balance.


Republicans must seize this process as an opportunity to galvanize their base. However, doing so risks alienating Hispanic voters.

All of this is a ritualistic Kabuki dance, a rehearsal for the no-holds-barred brawl we can expect if one of the four conservatives on the Court retires while Barack Obama is president. But the average age of those four is under 62, while the four more liberal justices average almost 77. Anthony Kennedy, the swing vote, is 72; the liberals are John Paul Stevens, 89; Ruth Bader Ginsburg, 76; and Stephen Breyer, 70. The oldest of the conservatives, 73-year-old Antonin Scalia, seems to be having a grand time on the bench and shows no desire to depart any time soon. The others are Clarence Thomas, 60; Samuel Alito, 59; and John Roberts, 54, the chief justice.

Last year, University of Chicago law professor William Landes and U.S. Circuit Judge Richard Posner completed a statistical analysis of the voting patterns of all the justices who have served since 1937. It showed that four of the five most conservative justices to have served in the past seven decades are currently on the Court: Thomas was the most conservative, followed by Scalia, Roberts, and Alito. The fifth was the last chief justice, William Rehnquist.


According to The New York Times, Justice Stevens declared in 2007 that everyone "who's been appointed to the Court since Lewis Powell [in 1971] has been more conservative than his or her predecessor," adding that Ginsburg, who replaced Byron White, might be the sole exception.

That pattern could well be broken if one of the conservatives departs during the Obama administration. Yet even if Obama gets more than his share of Supreme Court picks, he will probably have more opportunities to replace liberals than to decisively affect the Court's direction by filling the seats now occupied by conservatives.

Although Sotomayor's confirmation might not have an enormous impact on the Court's balance, Republicans' reaction to her nomination could have major political consequences. After suffering massive losses in the 2006 and 2008 elections, Republicans and conservative groups can ill afford to roll over and play dead. They must seize this confirmation process as an opportunity to galvanize their base. However, doing so risks alienating Hispanic voters, who recoiled at all the party's immigrant-bashing in recent years.

In the 1988 and 1992 presidential elections, GOP nominee George H.W. Bush pulled only 30 percent and 25 percent of the Hispanic vote. In 1996, Bob Dole garnered just 21 percent. In his two presidential races, George W. Bush reversed the trend, picking up 35 percent of the Hispanic vote in 2000 and 43 percent in 2004.


In the years that followed, to the consternation of George W. Bush, Karl Rove, and Sen. John McCain of Arizona, the anti-immigrant rhetoric from many Republicans grew louder and harsher. As a result, McCain's presidential bid attracted only 31 percent of the Hispanic vote in 2008, despite his representing a state with a substantial Hispanic population and having been very much a moderate in the immigration wars.

The size of the Hispanic vote tripled to 9 percent of the electorate between 1988 and 2008. The Times' Adam Nagourney has quoted Bush 43 strategist Matthew Dowd as saying that Republicans now need at least 40 percent of the Hispanic vote to be competitive nationally -- up from his 2000 estimate of 35 percent. For the week of May 18-24, Gallup's nightly tracking poll pegged Obama's job-approval rating among Hispanics at 78 percent. Nominating Sotomayor can't possibly hurt him there.

In the dance that has just begun, everyone has a well-rehearsed role. Activists on the far left and right live for these moments. They can raise money, recruit supporters, and shout on TV. I'll be more interested when I see a confirmation fight that truly matters.

This article appears in the May 30, 2009 edition of National Journal Magazine.

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