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07.12.09

Sotomayor: The Drinking Game

Today's confirmation hearings don't have to be a total snooze—so crack open a beer and let the buzz words start flying, says Tom Goldstein, who has argued more than 20 Supreme Court cases and is founder and manager of SCOTUSblog. Who'll be the first to say empathy?

America loves a good fight, but there never was any real suspense about whether Sonia Sotomayor would be confirmed by the Supreme Court. The most recent hearings for John Roberts and Samuel Alito at least held out the prospect that, with the Senate’s balance of power closely divided, Democrats might launch a filibuster, which would have meant all-out war with Republicans.

The Puerto Rican Legal Defense and Education Fund. Depending on who is talking, either a well-established, mainstream civil-rights organization or an abortion-loving, death-penalty-opposing, terrorist front group.

But with a 60-vote majority and a deep reserve of public support, President Obama probably could have gotten a well-trained horse through the Senate if he threw himself behind the effort. Naming instead the court’s first Latina nominee—a woman with decades of experience as a prosecutor, trial judge, and appellate judge, and a seemingly moderate record of careful decisions—was just unfair, and it doomed any chance for Republicans to mount a serious opposition.

Even so, hearings like these promise some occasional political theater and the even rarer genuine insight into the important debates over how the Constitution should be interpreted. So you should tune in. But because hearings (or at least the cocktail parties where hearings get mentioned) often devolve into code words, here is a handy guide that will put you “in the know.”

If the proceedings instead end up as a boring snooze-fest, I suggest using the list as a drinking game. Whenever a senator utters one of the following names or phrases, take a shot.

Frank Ricci—The lead white plaintiff in the famous New Haven, Connecticut, firefighters case. The Supreme Court by a 5-4 vote recently reversed a decision by a panel of the 2nd Circuit (that included Judge Sotomayor), which had previously thrown out a suit challenging the city’s refusal to adhere to a promotional exam. Republicans assert that Judge Sotomayor’s vote indicates that she cannot eliminate her ideology and race-driven sympathy from her decisions—unlike, of course, the Supreme Court’s conservative white males.

Empathy—The worst-chosen phrase of the Obama presidency (since discarded), suggesting that a judge should decide cases on the basis of how much she shares the same feelings and experiences, rather than, say, the law.

Pearl-Def (PRLDEF)—The Puerto Rican Legal Defense and Education Fund. Depending on who is talking, either a well-established, mainstream civil-rights organization or an abortion-loving, death-penalty-opposing, terrorist front group. The latter characterization plays well with extreme conservatives, the former with a growing electoral group that is politically in play.

Miguel Estrada—A conservative Washington lawyer nominated by President Bush to a federal appeals court but blocked by Democrats. He is offered as proof that Democrats discriminate against Hispanic nominees as much as Republicans.

Strict Construction and Activism—Yin and yang; good and evil. Actually, totally empty labels for decisions that the speaker likes or hates. Of course, historically, pathbreaking decisions dear to the hearts of both the left and right have broadly read the Constitution to invalidate state and local laws.

Bart Didden—A resident of Port Chester, New York, whose property was condemned for a local redevelopment effort. Didden also alleged that the city had resorted to extortion over the use of the land. A 2nd Circuit panel that included Judge Sotomayor held that the city did not violate the Constitution’s “takings” clause under the Supreme Court’s controversial Kelo decision. Kelo has ironically spurred a renaissance in property rights.

Belizean Grove—A group of professional women formed as a counterpoint to the all-male Bohemian Club, which hosts an annual retreat at its Bohemian Grove compound. Judge Sotomayor joined—she has since resigned—notwithstanding that, as a practical matter, it excluded men as members, and the judicial code of ethics prohibits membership in exclusionary groups.

Umpire—The ideal, embodied in Chief Justice Roberts. Republican opponents believe Judge Sotomayor instead plays left field.

Baseball—The American pastime, which Democrats contend Judge Sotomayor saved in ending a lockout of the players in 1995, though they will be quick to tell you that of course she actually did not allow her feelings for the game to influence her ruling and would just as easily have ruled for the owners if the law were on their side, all of which makes the story kind of pointless.

Nancy Drew—An American heroine who always seemed to get herself into and out of troubles in stories that my 6-year-old daughter loves to read, as did Sonia Sotomayor, which means that my kid is going to sit on the Supreme Court some day.

Document Dump—The materials recently received from the controversial/heroic PRLDEF (see above), which some Republicans will use to explain that they are voting against Sotomayor only because the process was too rushed. (Two shots if they mention their admiration for Estrada at the same time.)

Privacy and Stare DecisisRoe v. Wade. No sane nominee answers the one question people care the most about when it comes to the Supreme Court: Will you vote to uphold, overturn, narrow, or expand the constitutional right to an abortion? So the question gets asked in terms of the “right to privacy” and stare decisis, which is Latin for, “I will uphold any decision that I think is pretty much correct, but it would be inappropriate to say more.”

I hope that you will find this list handy. And I certainly hope that the hearings are interesting and substantive. Otherwise, we’re all going to be pretty hammered.

Plus, watch Tom Goldstein’s hilarious fake commercial:

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Tom Goldstein practices at Akin Gump and teaches Supreme Court litigation at Harvard and Stanford Law Schools. He has argued 21 Supreme Court cases. He founded and manages SCOTUSblog, which is devoted to coverage of the Court. He also spends time working with Sony Pictures Television on a TV series about his practice.