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Wednesday, June 02, 2010

Elena Who?

If it's June, it must be PrawfsBlawg.  It's great to be back for another one-month gig.  I guess the fact that you all keep inviting me back means that I'm not too bad.  Of course, the one-month time-limit also suggests that, perhaps, I'm not that good.  :-)  Oh well, whichever it is, it's great to be back.  It's especially great to be guest-blogging with my YLS classmate, David Friedman.

Thinking of issues to blog about inevitably got me thinking about the things I was blogging about when I was here last June.  And, of course, the biggest thing was Sonia Sotomayor's nomination to the Supreme Court, which was announced in late May 2009, just as I was preparing for my guest gig on Prawfs.  The spectacle of a Supreme Court nomination provided ample fodder for law blogging.  Too bad we don't have one of those going on this year.  Oh, wait...

The comparison between the attention the two nominations have received and the controversy they generated couldn't be more stark.  As I was thinking about the two nominations, I found that my memory of the Sotomayor confirmation timeline had grown hazy, so here are a few landmarks (per the ever reliable Wikipedia):  Sotomayor was informed that she was the nominee on May 25, 2009.  She immediately started her meetings with Senators.  Her confirmation hearings began on July 13, and the Senate Judiciary Committee voted to send her to the full Senate on July 28, 2009, with the 13-6 vote almost entirely along party lines (only one Republican on the committee voted for her).  She was confirmed by the full Senate on August 6, by a vote of 68-31, with only 9 Republicans supporting her.

By this time last year, merely a week after her nomination was announced, we had been treated to over 600 stories in what Lexis/Nexis defines as "major newspapers" concerning her "wise Latina" remark and the ridiculous question whether that proved that Sotomayor was a "racist."  Her credentials and intelligence had been impugned as the consequences of affirmative action and grade inflation at Princeton.  She had endured a firestorm of conservative criticism over a per curiam opinion in the Ricci case.  In other words, the first nomination of a Latina to the Supreme Court was met with extreme resistance by conservatives, who immediately went on the offensive, attacking Sotomayor within days of her nomination in terms that explicitly played on racial fears and stereotypes about the intelligence of Latinos.

Although Kagan has had to endure some speculation about her sexual orientation, and although her nomination has generated some dissatisfaction on the left, I think at this point it's safe to say that the nomination as a whole has proved far less controversial.  Despite the fact that it's an election year in which Republicans are eager to fire up their base and are expected to make some gains in Congress, Kagan appears to be headed towards a relatively smooth confirmation by recent standards.  If I were to put money on it, I'd take the "over" side of a bet comparing her final vote tally to Sotomayor's. 

If it goes down that way, as I suspect it will, it will nicely falsify Ramehs Ponuru's suggestion a few weeks back that it was somehow more dangerous for Republicans to oppose Sotomayor than Kagan because of her race.  In my opinion, the opposite is true.  It was easier for Republicans to ridicule, demean, caricature and, ultimately, oppose Sotomayor because of her race. 

Posted by Eduardo Penalver on June 2, 2010 at 10:19 AM | Permalink


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I can't disprove that assertion, of course, but there may be other explanations (which don't exclude yours):

1) Sotomayor had a judicial record to dissect, where Kagan has none.

2) No matter what you think of it, the "wise Latina" comment was a lightning rod; if Kagan had said anything comparable, I'm sure it would have been noted, regardless of the intentions of the Republican power structure.

3) Republicans went after Sotomayor because she was President Obama's first pick, and for all they know it may have been his only pick.

Posted by: Mark D. White | Jun 2, 2010 1:37:21 PM

One other possibility, Mark: the oil spill. I was talking this over with some colleagues at lunch, and the consensus was that Kagan is definitely benefitting from some benign neglect.

Posted by: Eduardo Penalver | Jun 2, 2010 1:54:23 PM

For this Obama and Sotomayor supporter, as for so many others, the "wise Latina" phrase was no problem. It was that troublesome word, "better," in the same sentence that was so objectionable. If Kagan had said, "better," she would catch grief, deservedly. If a white male had said, "better," he would have been non-confirmable.

Posted by: Jules Rimet | Jun 2, 2010 2:42:51 PM

Good point, Eduardo - hadn't thought of that (in that context).

Posted by: Mark D. White | Jun 2, 2010 2:52:39 PM

Eduardo, thanks for the shout out!

Interestingly, Gallup shows that public opinion was slightly warmer toward then-Judge Sotomayor on the confirmation question than it is now toward Solicitor General Kagan. I don't know how to interpret these numbers, but my guess is that the President's decline in popularity may also bear on the popularity of everything he does or touches.

Posted by: David Friedman | Jun 4, 2010 4:42:38 PM

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