NOW THAT the president has nominated Judge Sonia Sotomayor to the Supreme Court, attention turns to the confirmation process. With the Democrats holding 59 seats in the Senate, Sotomayor will almost certainly be the next associate justice. The Republicans held 55 Senate seats when President Bush's nominations of Chief Justice John Roberts and Justice Samuel Alito were confirmed - which meant that even a mostly united Democratic opposition lacked the votes to stop the nominations. Every Republican senator voted for Roberts and all but one voted for Alito, and there is every reason to expect that the Democrats will fall into line in the case of Sotomayor.
Nonetheless, it is essential for Republicans to assert themselves. Republicans should insist on the time necessary to vet Sotomayor. She's been on the bench for almost 20 years, and has made thousands of decisions. Who could object to a thorough going-over of her judicial record? The time from the nomination of Roberts to his scheduled Judiciary Committee hearing was 50 days; for Alito it was 72 days. Senator Arlen Specter, then a Republican chairing the Judiciary Committee, insisted on the Democrats' having enough time to prepare for the hearings. Judiciary Chairman Patrick Leahy should provide the Republicans the same courtesy.
It seems unlikely that Republicans will be able to gain significant traction questioning Sotomayor's basic qualifications. She is a graduate of Princeton University and Yale Law School, and her career as a lawyer and judge appear to make her qualified for the Supreme Court. Her record is not without blemish, however, and Republicans should respectfully question, among other things, her troubling pattern of reversals by the Supreme Court.
In addition, Sotomayor's record should be examined for ethical lapses. Indeed, the factor that might put the nomination in real jeopardy is unexpected ethical issues, such as sitting on cases in which she mistakenly failed to recuse herself. The White House surely vetted Sotomayor for such issues, however, and determined that she has met the ethical standards necessary for confirmation.
Republicans would be better advised to question President Obama's own standard for what he was looking for in a nominee, which was a judge with "empathy." The president's approach to judging - in which he says that a judge's life experience and what's in her heart determine the outcome in what he calls the "hard cases" - is demonstrably at odds with the rule of law, and Republicans should not hesitate to say so.
The public overwhelmingly agrees that the law, and not the judge's heart, should determine the outcome of cases. That is why Chief Justice Roberts's famous judge-as-umpire analogy was so effective in helping him gain confirmation, and why it was so vexing to the Democrats. Sotomayor provided some basis for believing that she thinks the background of the judge, rather than the law, should dictate judicial outcomes in a 2001 speech entitled "The Latina Judge's Voice." The Republicans should aggressively make the case that the judge's voice should be the voice of the law, which doesn't depend on the race or sex of the judge.
Republicans should feel free to vote no if they aren't convinced that she'll decide cases according to the rule of law. The Democrats didn't hesitate to line up against the Roberts and Alito nominations, even as they acknowledged the professional excellence and stellar personal qualities of the nominees. Only 22 Democrats voted to confirm Roberts, and four voted to confirm Justice Alito. Indeed, it is extraordinary that 25 Democratic senators voted to filibuster the nomination of Alito because they didn't like how they thought he would vote as a member of the Court.
As we hear calls in the coming weeks for deference to the president's choice, and for the Republicans not to bother to make the case against the nomination, we should remember how the Democrats lined up against Bush's nominees. Indeed, calls for deference should ring particularly hollow coming from this administration, since Obama and Vice President Joe Biden disregarded that factor when they both voted against Roberts and Alito, and when both went so far as to join the extraordinary attempted filibuster of Alito's nomination.
William Kelley, former deputy counsel to President George W. Bush who helped coordinate the nomination and confirmation processes for John Roberts and Samuel Alito, is on the faculty of the Notre Dame Law School. 
