Tiptoeing around Sonia Sotomayor

Senate judiciary committee chairman Patrick Leahy swears in US supreme court nominee Sonia Sotomayor. Photograp

When the controversial stand-up comedian Carlos Mencia hosted a regular cable TV show, a recurring gag was to have the actor Peter Boyle do dramatic readings of Mencia's hate mail. One memorable performance had Boyle come out and hold aloft a viewer's complaint about Mencia's racially-charged material.

"Carlos Mencia," Boyle thundered, "you're a racist spic!" With that off-color joke, Mencia was able to turn around allegations that his routines were racist by illustrating the bigotry of his critics.

As Republicans approach Sonia Sotomayor's confirmation hearings, which got underway in Washington DC on Monday, they have little chance of preventing her confirmation. The Democrats hold 60 Senate seats. Since the GOP effectively swore off judicial filibusters under George Bush, only 50 votes are needed to put Sotomayor on the Supreme Court.

But Republicans can use the hearings to highlight the least popular aspects of judicial liberalism, scoring points off President Obama and imposing a political cost on Democratic senators' yes votes. The most fertile ground concerns race-conscious affirmative action, which Sotomayor has defended. It was the policy at the heart of Ricci v DeStefano, a high-profile case on which Sotomayor's judgment was recently overruled by the Supreme Court.

With little public debate, Title VII has moved civil-rights laws toward eradicating employer practices with a "disparate impact" on protected minorities rather than outlawing intentional discrimination against individuals of all races. Sometimes, this means that the anti-discrimination laws themselves are used to discriminate on the basis of race. But the unwritten rule is that the discrimination cannot be too obvious, as it was in the case of the New Haven firefighters who saw their promotion exam results thrown out.

Sotomayor violated that rule when she not only sided against the New Haven firefighters, but tried to bury their complaint. She is also vulnerable on unfortunate comments she made about a "wise Latina" deciding cases differently than a white man, possibly due to "inherent physiological or cultural differences" between them.

Yet on the opening day, at least, Senate Republicans for the most part did not want to go there. Senator Lindsey Graham, a South Carolina Republican who has said he will probably vote to confirm Sotomayor, told the judge on Monday, "Unless you have a complete meltdown, you're going to get confirmed." Graham took a shot at Obama's own votes against Republican nominees during his time in the Senate – "I can assure you that if I applied Senator Obama's standard to your nomination, I wouldn't vote for you" – but then promised not to apply Obama's "absurd, dangerous standard."

"Some of the things that have been said about Judge Sotomayor have been intemperate and unfair," said Senator Orrin Hatch, a Utah Republican who has previously chaired the Senate judiciary committee, by way of distancing himself from conservative criticisms of the nominee. Hatch is also considered likely to vote for Sotomayor.

But not everybody played nice in their opening statements. Senator Jeff Sessions of Alabama, the ranking Republican on the panel, stated bluntly that Sotomayor's "wise Latina" remarks were "shocking and offensive to me." "I will not vote for — no senator should vote for — an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court," Sessions declared.

"Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader of the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue as to her decision against the firefighters," Sessions continued. "It seems to me that ... Judge Sotomayor's empathy for one group of firefighters turned out to be prejudice against the others."

"Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices," Senator Jon Kyl, an Arizona Republican, said in reference to these concerns. "The factors that will influence her decisions apparently include her 'gender and Latina heritage' and foreign legal concepts that get her 'creative juices going."

Republicans nevertheless have reason to proceed down this path gingerly, as a group of conservative white men who seem overly preoccupied with race and gender while grilling a Hispanic woman risk charges of bigotry themselves. This is especially challenging since Republicans are trying to win over women and the growing Hispanic vote.

Without a strong attack on racial preferences, however, Republicans are left only with vague criticisms of judicial activism and legislating from the bench – criticisms judiciary committee Democrats stood ready to counter. Their newest member, Senator Al Franken of Minnesota, pointedly said that conservatives consider court decisions they disagree with "activism."

As the confirmation hearings move into questioning Sotomayor directly, the Republicans want to sound like champions of colour-blind justice under the law. The Democrats want people to listen to the GOP senators' questions and hear a dramatic reading by Peter Boyle.

h: Pablo Martinez Monsivais/AP

To avoid tripping up over race and gender, Republicans are treading warily at the Sotomayor confirmation hearings