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Sotomayor Goes to Rope-a-Dope Strategy

(AP Photo/Gerald Herbert)
We are now roughly one quarter of the way through Supreme Court nominee Sonia Sotomayor's question-and-answer session with the Senate Judiciary Committee, early enough for most of us to still be awake (by that I mean, Senator Grassley hasn't started his questions) but late enough for some distinct themes to have emerged from the din of partisan sound-bytes.

First, the nominee clearly has embraced the approach first employed by Justice Ruth Bader Ginsburg 16 years ago and subsequently adopted by the last two nominees, Republicans John G. Roberts, Jr. and Samuel A. Alito, Jr. You can call it the "Ginsburg Rule" or the Rope-a-Dope or you can just assign it to the fact that she's got the votes and doesn't really have to convince anyone on the panel who is not already convinced she should get the job.

Judge Sotomayor consistently refused to remotely answer - fully or substantively or any other way - when asked about some of the most controversial issues of our time. She wouldn't talk in detail about presidential power and signing statements, whether the recent narrowing of the scope of the Commerce Clause is viable or not, or whether she's going to seek to expand the scope of the Second Amendment to expressly preclude state regulation. She barely touched the abortion issue and the controversial takings clause case that boiled up a few terms ago (to former Justice David H. Souter's chagrin).

Second, and ironically, she seems to be answering more completely when she is pressed by her Republican opponents than when she is tossed softballs by Committee Democrats. For example, she patiently and often painfully explained to Ranking Chairman Jeff Sessions (R-Ala.) what she meant for all those years when she talked about "Wise Latina" woman. Now, it's clear that he doesn't buy her explanation — he got argumentative when he failed to get her to say what he wanted her to say - but at least both parties get credit for playing their respective roles in the kabuki dance.

Likewise, Judge Sotomayor took great care to try to explain to both Sen. Sessions and Sen. Orrin Hatch (R-Utah) her decision in the Ricci firefighters case, a fairly unimportant decision that because of its timing and the nominee's role in it has taken on Dred Scott-like proportions. The Republicans accused her of hiding her initial decision in the matter so as not to arouse her colleagues on the bench. She responded that she had conservative adopted the trial judge's lengthy and detailed 78-page ruling. They said she had gotten the law completely wrong. She politely said that she had applied the standard in effect at the time.

When her supporters asked questions, however, they often got the cold shoulder. Sen. Herb Kohl (D-Wis.) got a major brush off when he asked about Judge Sotomayor's views on cameras in the Supreme Court — what was she going to say, yes? — but also when he asked about anti-trust law. Sen. Dianne Feinstein asked perfectly legitimate and pointed questions about domestic surveillance and the "women's health exception" in abortion cases and got a very polite "thanks, but no thanks" response from the nominee. You keep your friends close and your enemies closer, I guess.

With 14 Senators to go in the first round of questioning — roughly seven hours left by my calculation — the hearing is likely to soon devolve into a battle of will and stamina. The judge has more explaining to do about her judicial philosophy, she will be asked again about the role of empathy in decision making, and of course the Wise Latina comment will come up again when Republican Senators Kyl, Graham and Coburn get their turns at bat. But already virtually every hot topic has been raised and addressed, in whole or in part, and there have been no "meltdowns" or implosions.

And the one bit of good news? Already we know that Sotomayor, the big baseball fan who ended the strike in 1995, doesn't think much of the silly umpire analogy Chief Justice John Roberts offered up when he was confirmed in 2005. When she was asked to comment upon it, she coolly responded: "All analogies are imperfect" and "judges must always keep an open mind."

Sotomayor Explains "Wise Latina" Comment

Sotomayor: Abortion Law Is "Settled"

Sotomayor Treads Lightly On Gun Issue

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Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.