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Political Theater In Critics v. Sotomayor

Declaring that President Obama's nominee for the Supreme Court has "vulnerabilities," New York Times columnist David Brooks nonetheless said today that he did not believe attacks on a comment or decision by Sonia Sotomayor will derail her confirmation.

The District Court judge from New York has drawn criticism from some for remarks she made in 2001 about how her background may affect her abilities as a judge compared to that of a white man, as well as her decision to affirm a lower court ruling in a controversial discrimination case.

But Republicans gunning for the first Hispanic nominee for the High Court may find they do so at their peril. "Did President Obama lay a trap for Republicans when he nominated Sonia Sotomayor?" asked Face The Nation host Bob Schieffer.

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"Well, he makes it tough," said Brooks (left). "The question, as Jon Kyl said earlier, is does it affect her judgment? And I came across a bit of research on something called SCOTUSblog, which is a very good blog on the Supreme Court. She's had roughly a hundred cases before her where racial discrimination was alleged. In almost all of those cases, in about 80 or 90 percent, she denied the claim of racial discrimination, which says to me that when she practices, she's not hyper-racial, she's not driven by identity politics. And if that kind of finding bears out, then I suspect Jon Kyl will vote for her and a lot of Republicans will vote for her."

Brooks compared Sotomayor's comments of race to those of the president. "She's from a slightly earlier generation, and to me she talks about race as a bunch of blocks: There is, like, a block of white guys, a block of Hispanics, a block of women. And it's sort of a contest. Obama is much more elegant and much more fluid. And I much prefer the way Obama talks about race than the way she does."

The debate over her confirmation may hinge not only on her own race, but that of the Senators' constituents back home. Jon Kyl of Arizona and John Cornyn of Texas, both Republicans, are from states with large Hispanic populations.

"Doesn't this really underline, though, that these nomination battles are not always about the nominees, they are also about the politics in every senator's home state?" asked Schieffer. "You heard John Cornyn earlier this week said we shouldn't be talking like Rush Limbaugh is talking, that this is just awful. The politics of it is really interesting."

"It always is," said Bob Woodward of the Washington Post, "but also you have to kind of step back and say, 'What is a confirmation hearing?' And it's theater. It's a presentation of a personality. It's not just one speech or one case.

"If you look at her record, like this New Haven firefighters' case, her ruling actually is quite conservative. It's a short ruling and it says we're upholding the trial judge in that case. That is normally, or very often, the case what conservative appellate judges do."

Woodward noted that Sotomayor's knowledge of the technicalities of appellate justice — which caused President Obama, who taught constitutional law, to be "blown away" by her — should put her on solid ground when meeting with members of the Judiciary Committee. "These people are in the weeds that way," he said. "So she may actually in the end have a pretty easy slide on this."

Brooks also discounted charges by critics that empathy (a trait Mr. Obama valued in his pick) should have no place in a judge's decision-making process, or that it presages a tendency towards "judicial activism."

"It's incoherent to say we don't make decisions without empathy," Brooks said. "We're not robots. It's like saying we're going to have water without hydrogen. It's just part of how we decide things. We have empathy for this and that, and if we didn't have sort of unconscious emotional reactions, we could never make a decision.

"I think the test for her is not if she has empathy, but, as the oath says, does she have empathy for all sides?"

He suggested that the New Haven case, where Caucasian firefighters taking a test for a promotion were rejected because no African Americans passed the same test (and so no one was promoted), would be the toughest political case not because of her ruling, but "because to me the law is noxious.

"A guy has dyslexia, studies month after month, hires somebody to read him the stuff so he can learn it, passes the test, and then he's denied the promotion because the wrong races pass the test. That is morally offensive to a lot of the people. And I think that is something I wish she had felt a little more empathy for in that case."

Woodward pointed out, "Not to argue, I mean, in that ruling, which is very short, she and the other two judges on the panel say they have sympathy for the people who have filed this case. And what they're saying, as a matter of law, it doesn't apply here."

"Right, I agree with you on that," Brooks said.

"And I think most people would agree with that. But, you know, the Supreme Court may overrule it. It might be an electric moment and become something that she stumbles on."

"Right, I agree," Brooks said. "The law was idiotic, not necessarily her ruling. And I hope we use this as an occasion to debate those kinds of laws."

More from Face The Nation (5.31.09):

  • Senators On Sotomayor And Racism
  • Firefighters Case "Red Hot" For Sotomayor
  • Schieffer: Back On Planet Earth
  • Read The Complete Transcript> (pdf)

    To watch Bob Woodward and David Brooks discuss the Sotomayor nomination click on the video player below.

    • David Morgan

      David Morgan is a senior editor at CBSNews.com and cbssundaymorning.com.