The full political implications of President Obama's selection of Sonia Sotomayor won't be clear for some time. But if history is any indication, senators' questioning and votes in the forthcoming confirmation hearings could play a role in their re-election bids.
Legal experts hearken back to Senate elections where the incumbent's vote on a Supreme Court nominee became a hot-button issue. Christopher Eisgruber, provost of Princeton University and former clerk to Justice John Paul Stevens, recalled the failed re-election bid of former Sen. Alan Dixon, D-Ill., who many believe lost his 1992 primary race to challenger Carol Moseley Braun because he voted to confirm Clarence Thomas.
"That was a very special case," Eisgruber said. "Dixon lost his seat because it was connected to sexual harassment, rather than issues about the court. If the [Anita] Hill allegations had not come out, I don't think that confirmation proceeding would have the same kind of impact in the Senate." He added that he doesn't think Sotomayor's nomination will become a "wedge issue."
While most agreed that Sotomayor wouldn't be as controversial as Thomas, critics say that her stance on social issues and gun rights could trigger concern among red state Democrats or electoral fodder for those senators' challengers. "I think every senator understands that a vote on a Supreme Court nominee and judicial issues has the potential to be a salient electoral issue," said Gary Marx, executive director of the Judicial Confirmation Network. Already, lawmakers have begun shaping their responses to Sotomayor with future elections in mind.
GOP senators hailing from states with large Hispanic populations, such as Judiciary Committee members John Cornyn of Texas and Jon Kyl of Arizona, have been careful to distance themselves from the inflammatory rhetoric of Newt Gingrich and Rush Limbaugh. And Cornyn has tiptoed around the issue of race even as he criticizes Sotomayor for her "wise Latina" comment. "There's no problem if Judge Sotomayor was simply showing pride in her heritage, as we all should as a nation of immigrants," he said on Thursday. "But if it suggests a judicial philosophy that says because of sex or race or ethnicity that a judge is better qualified or more likely to reach better legal decisions, I simply do not understand that contention."
Pennsylvania's Arlen Specter is another senator who faced political fallout over Thomas, narrowly avoiding being toppled in 1992 after he became a target of criticism for his questioning of Hill. Specter isn't taking his chances this time around. He went out of his way Wednesday to reassure fellow Democrats that he fully supports Sotomayor, praising her "extraordinary" judicial record in a speech on the Senate floor. Specter faces a likely primary challenge in a state with a sizable Hispanic population.
Sotomayor's stance on gun rights could be a particular problem, said the Heritage Foundation's Brian Darling, who worked on the Judiciary Committee for former Sen. Bob Smith, R-N.H. In Maloney v. Cuomo, Sotomayor was part of a three-judge panel that affirmed a lower court's ruling in a case involving a state law banning the possession of nunchaku (a device used in martial arts). The lower court said the law does not violate the Second Amendment because the amendment does not apply to the states.
"That's going to be very damaging to red-state Democrats if this nominee is a deciding vote on extending the Second Amendment protections to the states," Darling said. Sotomayor will have to explain her thoughts on gun rights at the hearings, Darling added.
Marx emphasized, however, that Sotomayor will be an electoral issue for incumbents only if their challengers make it one. He pointed to Sen. John Thune's successful 2004 ousting of then-Senate Minority Leader Tom Daschle in South Dakota as a prime example of running on judicial issues. "Thune made the courts and Daschle's role in obstructionism an issue," Marx said. "Sotomayor is going to be a lightning rod in some states." For his part, Thune is making sure to broadcast his judicial views with a new Web site promising to be a "conservative source for the latest confirmation news."
While court observers expect the Senate to confirm Sotomayor, there's still incentive for Republicans to oppose her as a way to appeal to the GOP base, said William Marshall, a law professor at the University of North Carolina.
Republicans considering 2012 presidential runs may find themselves under greater pressure to vote against Sotomayor in order to appeal to primary voters. Many say that's why then-presidential hopefuls Obama and Hillary Rodham Clinton voted against George W. Bush's nominees, John Roberts and Samuel Alito. Sen. Evan Bayh, D-Ind., originally introduced Roberts at his confirmation hearings, only to ultimately vote against him. "I think that had a large degree to do with the fact that he was running for president," Marx said.
Others don't see presidential aspirations playing an important role, at least not yet. Republican strategist Alex Conant points out that Obama and Clinton had not, by this point in Roberts' confirmation process, come out adamantly against him: "They took a hard look at his record and then came to a conclusion."