Benjamin Wittes joined experts in a Washington Post running commentary to discuss Judge Sonia Sotomayor’s nomination as a Supreme Court Justice.
Only a few years ago, a Supreme Court nominee like Judge Sonia Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the district court bench, and she is qualified for the high court in every formal sense. While fights over such nominees occasionally erupted, they were rare. The nomination of John Paul Stevens as late as 1975 received unanimous Senate approval in a mere 16 days.
Yet based on recent trends in Supreme Court nominations, Sotomayor can probably expect a minimum of 30 votes against her, maybe more like 40. She can expect highly contentious questions about everything she has ever written or said. She can expect a team of operatives to spend the next few months digging up dirt on her. And she can expect insinuations of perjury before the Senate Judiciary Committee to the extent that there is any tension between her voluminous judicial work and the words she speaks in the careful dance in which she will engage with the committee.
Our system has gone from one in which people like Sotomayor, Chief Justice John Roberts and Justice Samuel Alito are shoe-ins for confirmation to a system in which they are shoo-ins for confirmation confrontations. It’s worth asking whether America gets anything in exchange for this new presumption, other than battles that serve to energize both political bases.