When Lindsey Graham (R-S.C.) informed Sonia Sotomayor on Monday that “unless you have a complete meltdown, you’re going to get confirmed,” he wasn't telling her—or the rest of us—anything we didn’t already know. But when he added, “but you know, the drama being created here is interesting,” well, I suppose if you mean by “interesting” you mean “predictable to the point that you could play drinking games with it,”—take a sip every time someone says “follow the law as written” and down the glass for every mention of “wise Latina”—perhaps he may have had a point as well. But “drama,” I’m afraid that’s going too far. The only drama, now that Joe Biden is no longer around to soliloquize, was whether the likes of Graham or Jon Kyl were getting themselves so worked up they might need medical attention.
Republicans have not only given up any hope of defeating Sotomayor, they are also well on their way to forfeiting their right to call themselves a national political party.
Sometimes Supreme Court hearings do provide genuine drama. Robert Bork in 1986 and Clarence Thomas in 1991 certainly fit the bill. But both men’s hearings were widely considered disasters—Bork was rejected and Thomas almost, in large measure because they were so, um, “interesting.” Prospective justices studied these hearings and are today skilled in the art of boring us to tears. The senators therefore must create whatever drama we are likely to enjoy with the nominee’s past record (say, an affinity for porn or a stubborn refusal to embrace the right to privacy). But given that Sotomayor is not merely America’s first Hispanic to be nominated to the high court, but also someone with extremely mainstream legal views, a boring social life and an appointment to the bench from Republican President George H.W. Bush, she does not exactly offer up much in the way or raw material. It is therefore up to the senators to find a way to make this moment their own.
How did they go about it? If Tuesday was any indication, the Republicans have not only given up any hope of defeating Sotomayor, they are also well on their way to forfeiting their right to call themselves a national political party. How else to explain the fact that literally the only consistent theme to their attacks was their assertion of white male privilege?
Do I exaggerate? You tell me:
- "I think it's consistent in the comments I've quoted to you and your previous statements that you do believe that your backgrounds will... affect the result in cases, and that's troubling me," Sen. Jeff Sessions
- “Judge Sotomayor, you are nominated to the highest court of the land, which has the final say on the law. As such, it’s even more important for the Senate to ascertain whether you can resist the temptations to mold the Constitution to your own personal beliefs and preferences. It’s even more important for the Senate to ascertain whether you can dispense justice without bias or prejudice.” Sen. Charles Grassley
- “You seem to be celebrating [the superiority of being a minority judge]…You understand it will make a difference… And not only are you not saying anything negative about that. But you are embracing [it]." Sen. Jon Kyl
- “Terror on the bench; behaves in an out-of-control manner; she is nasty to lawyers; she’ll attack lawyers for making arguments she does not like; she can be a bit of a bully.” Senator Lindsay Graham (quoting anonymous sources)
What the above statements—and many more like them—have in common is the assumption that “prejudice” and “bias,” to say nothing of irrational, hysterical behavior, are the exclusive province of nominees who do not fit the mold of previous justices—that is the white males who have sat on the bench for the past two hundred and 230 years, give or take two women and two blacks. As Sotomayor’s defenders kept pointing out, there was pretty much nothing in the 230 rulings she has written nor the 3,000 or so decisions in which she participated her eleven years on the U.S. Appeals Court that would give any moderate-to-conservative legal theorist the slightest pause. (Even in the famous case of the New Haven Firefighters, the Supreme Court admitted that it was forging a new doctrine when, by a 5-4 vote, it overturned her majority position.) And so without any objectionable cases in her past, much less a televised “meltdown” during the hearings, all they could really come up with is their particularly virulent brand of identity politics, in which the Southern or Midwestern white male is deemed to be the only legitimate defender of American values and traditions. Anybody who looks, or sounds, much less thinks any differently had better watch out.
To tell the truth, I don’t actually have a better idea right now for the Republicans. They can probably hold onto about a third of the country—the third that thought that Sarah Palin is giving a boffo performance on the basketball court of political life—because, as a party, they are quite clearly quite clearly out of ideas, much less fresh faces with which to win elections. (Michael Steele promising to woo minorities “with fried chicken and potato salad" does not sound like a particularly promising alternative). But a party that cannot win a presidential election against an African-American candidate (literally) named “Barack Hussein Obama” is not likely to stage a comeback in our increasingly multicultural nation by appearing to beat up against an up-from her-bootstraps-from a-Bronx-housing-project success story named “Sonia Sotamayor.” Whatever suspense this Kabuki sideshow is liable to generate will derive from the rest of us sitting at home, trying to guess just when the hell they are going to figure that out.
Eric Alterman is a professor of English and Journalism at Brooklyn College and a professor of journalism at CUNY Graduate School of Journalism. He is the author, most recently, of Why We're Liberals: A Handbook for Restoring America's Important Ideals.