By Will Haun

No illusions should exist about who has truly been “playing politics” with the Sotomayor nomination

The Senate’s likely confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court today presents the country with a valuable, albeit uncomfortable, example of how politics not only continues at the court house steps, but informs who gets to don the judicial robe. For a town that often uses the phrase “playing politics” as a pejorative, it has been the virtue of those supporting Judge Sotomayor.

From the moment President Obama nominated her, Sotomayor’s nomination has been centered on courting the Hispanic vote – an increasingly important constituency for winning the White House, and a key to President Obama’s 2008 winning coalition. White House officials who spoke anonymously after Sotomayor’s nomination to TIME Magazine noted that “it’s not a bad thing” that Republicans have to assess their opposition to Sotomayor in light of politics, given their 9-point drop in Hispanic support during the 2008 election, rather than assess her fidelity to the Constitution.  This strategy has clearly wooed some Republicans, even reliable conservatives such as New Hampshire Senator Judd Gregg. Yet their reasoning behind supporting Sotomayor against their own views of proper Constitutional interpretation is found to be lacking. By thinking that one must support Judge Sotomayor’s nomination because doing otherwise, as Senator Gregg said, “undermines the public’s views of our courts and the integrity of our judicial system,” Gregg and others are in fact acquiescing to a nomination that was construed to politicize the confirmation process in the way they rightly deride.

The politicizing of Judge Sotomayor’s confirmation is evidenced by her responses to the Judiciary Committees questioning as well. Since the days of Judges’ Bork and Thomas’s hearings, both Republican and Democratic administrations have coached their judicial nominees to equivocate their way through hearings in an effort to avoid controversy. But Judge Sotomayor did not obfuscate her judicial philosophy, she wholly revised it. She disagreed with the idea that empathy should be a factor in judging, agreed with Justice’s Scalia and Thomas on foreign law’s lack of applicability to U.S. Constitutional interpretation, and agreed with Justice O’Connor’s view that a “wise old man and a wise old woman” are both equally capable of determining the correct outcome in cases.

The extent to which her answers to the Judiciary Committee contradict her previous speeches and statements have been widely noted across the ideological spectrum – some liberal law professors, such as Georgetown Law Professor Michael Siedman, have suggested Sotomayor may have perjured herself. If the Obama administration or any future White House has learned anything from Sotomayor’s nomination, it is this: no prior statement by a judicial nominee is too damning to be revised once the confirmation hearings begin.

These revisions are made easy when many of Judge Sotomayor’s most ardent Senate supporters have embraced the identity politics underlying her nomination. Perhaps the most notable example is New Jersey Senator Robert Menendez, who said to a rally for Sotomayor outside the Capitol, “[t]o say that you cannot vote for this qualified Latina to be on the United States Supreme Court sends a message to us as a community that we will not forget.” Thankfully, many of her opponents have decided not to cast the Constitution aside for a perceived political benefit. Senator McConnell promised a respectful hearing, and showed Judge Sotomayor the due deference a Presidential nominee deserves. Other Senators who represent heavily Hispanic states, such as John Cornyn, Kay Bailey Hutchison, John McCain, and Jon Kyl are opposing Sotomayor, concluding that Constitutional principles matter at least as much as politics.

When Thomas Jefferson noted that “[o]ur peculiar security is in the possession of a written Constitution,” he warned that Americans should “not make it a blank paper by construction.” Hopefully in future confirmation battles, future Senators will heed that call, not only in evaluating a Judge’s philosophy, but in preventing the Constitution from becoming a blank paper by politics as well.