Sotomayor nod likely to bring back identity politics

President Obama’s decision to tap Judge Sonia Sotomayor as his nominee to serve on the Supreme Court could bring up complicated and controversial issues regarding race, gender and sexual orientation — all topics that could turn her confirmation hearings into a nasty game of name-calling.

Affirmative action and racial preference cases encompassing everything from the Voting Rights Act and school integration — issues that are likely to head to the Supreme Court soon — mean Republican lawmakers are likely to put the heat on Sotomayor, thanks in some cases to her own past comments.

{mosads}Sotomayor is headed to Capitol Hill on Tuesday for initial meetings with 10 lawmakers. The judge will meet with Senate Majority Leader Harry Reid (D-Nev.), Minority Leader Mitch McConnell (R-Ky.) and the top two senators on the Judiciary Committee, Chairman Patrick Leahy (D-Vt.) and ranking member Jeff Sessions (R-Ala.).

Sotomayor will also speak with the two whips, Sens. Dick Durbin (D-Ill.) and Jon Kyl (R-Ariz.), both of whom are Judiciary Committee members. She will meet with committee members Charles Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.), as well as Sen. Kirsten Gillibrand (D-N.Y.), from Sotomayor’s home state.

Tuesday will likely be the first time Sotomayor handles conservative lawmakers, many of whom will question her past statements.

In 2001, Sotomayor said during a lecture at the University of California at Berkeley that a female Hispanic judge would come to different, better conclusions than a white male judge would reach. Some Republicans have used the comments to label her a racist, and President Obama has said Sotomayor regrets the word choice.

But while most Republicans reject the racist label, her nomination — she would be the first Hispanic and only the third woman to serve on the court — cannot help but highlight issues of race that are likely to be decided in coming terms.

The Civil Rights Act of 1964 is likely to occupy some of the court’s time in coming years, experts and court watchers said. Title VII of the act, which prohibits employment decisions based on race, religion or gender, has played prominently in Sotomayor’s career.

Sotomayor was part of a three-judge panel that ruled for the city of New Haven, Conn., and against one Hispanic and several white firefighters who said they had been denied promotions because of their race. The case, Ricci v. DeStefano, is likely to head to the Supreme Court, and while Sotomayor would have to recuse herself from the matter, it will raise future cases.

“However they answer [Ricci], definitively or not, it raises further issues under Title VII,” said Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation.

Though the case will be controversial, Sotomayor’s defenders say she was bound by her role as an Appeals Court judge in deciding the case as she did — a decision that has drawn criticism for both the content and the way in which it was handled.

“She is in some ways deciding this case in a different posture than the Supreme Court will be deciding it. She was bound by Supreme Court precedent,” said Heather Gerken, a Yale Law School professor. “If she gets reversed it could be because she got the law wrong. It could be because this court thinks the law should be something different.”

Gaziano takes a starkly different view: “Her shenanigans in [Ricci] indicates to me that she holds a wrongheaded view on the Equal Protection Clause and she’s embarrassed by it,” he said.

{mosads}The Voting Rights Act, the focus of a Supreme Court case this year, will also be the focus of future dockets. One provision of the act still requires Southern states to clear changes in elections operation with the Justice Department, 45 years after the VRA was enacted.

Another racial preference case, decided in 2007, could make a comeback as well. An opinion authored by Chief Justice John Roberts struck down the use of racial balancing in public schools as a compelling state interest; follow-up cases are likely, said David Stras, a law professor at the University of Minnesota and a contributing writer at SCOTUSblog.

Sotomayor’s views as laid out in Ricci and elsewhere draw contrasting portraits for supporters and opponents searching for clues about her disposition.

“She looks like a moderate, slightly liberal judge. That’s pretty much where [retiring Justice David] Souter fell on the court,” Gerken said.

But to conservatives, “Sotomayor is a provocative, extreme nominee,” Gaziano said. Her nomination “does belie the suggestion that we got earlier that [Obama] was going to nominate a moderate, consensus nominee.”

Gaziano said senators should not shy away from any of Sotomayor’s past comments or decisions, arguing that a full picture of her career is necessary before a vote comes to the floor.

“To suggest that these aren’t questions that the senators have to ask is otherworldly. They should resign if they can’t probe what would otherwise be disqualifying,” he said. “Senators should explore every important area of constitutional law and whether judges take the Equal Protection Clause seriously or fictionally.”