By Reid Wilson and Aaron Blake - 05/26/09 06:14 PM EDT
But it might not be as pivotal an issue as one may think — or as Republicans might hope.
Even though Republicans have found success in using judicial nominations to excite their base, political observers say the issue is not one that can appeal to independent voters — especially in lieu of a wounded economy and mounting job losses.
“Either party has to walk a fine line when using judicial picks as a campaign issue,” said Jennifer Duffy, senior editor at The Cook Political Report. “That line lies somewhere between talking about legitimate issues and whining.”
In 2007, Democrats raised excitement among their base with fights against now-Chief Justice John Roberts and -Associate Justice Samuel Alito. But, Duffy said, those nominations had little electoral impact in 2008 because of a crowded issues matrix, and the vast middle of the American electorate could not be convinced that either was too far out of the mainstream.
When judicial nominations can have an impact, observers said, is when the American public is less concerned with keeping their jobs and more concerned with moral issues that face the country.
Political watchers could not come up with any Senate race in recent years in which judicial nominations had been a major issue.
“There’s certainly potential” in making judges an issue, one senior Republican Senate strategist said. The party will keep a close eye on Democratic Sens. Blanche Lincoln (Ark.), Michael Bennet (Colo.) and Harry Reid (Nev.), all of whom could face tough reelection fights and who represent states with more conservative electorates than do other Democrats up for reelection.
But if the issue will play in any races, it wasn’t readily apparent Tuesday.
Among vulnerable members, Sen. Arlen Specter’s (D-Pa.) reaction to the nomination was one of the most eagerly anticipated. Specter voted for Sotomayor’s nomination to the circuit court in 1998, but he has caused Democrats headaches in the weeks since switching to their side.
Facing a potential challenge from the left from Rep. Joe Sestak (D-Pa.), Specter on Tuesday praised Sotomayor’s appointment.
“I applaud the nomination of Judge Sotomayor to the Supreme Court,” he said. “Her confirmation would add needed diversity in two ways: the first Hispanic and the third woman to serve on the high court.”
Another Democrat with a right-tending voting record also jumped on the Sotomayor bandwagon. Sen. Kirsten Gillibrand (D-N.Y.), who also faces a potential challenge from the left, was quick to note that she promoted Sotomayor’s appointment in a letter to President Obama.
The pick also won praise from top Democratic Senate candidates in swing states, including Ohio Lt. Gov. Lee Fisher and Rep. Kendrick Meek (Fla.).
On the GOP side, members who are up for reelection in 2010 held their fire, but alluded to potential battles ahead.
Judiciary Committee member Sen. Chuck Grassley (R-Iowa) said the committee “should take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences.”
Sen. Bob Bennett (R-Utah) faces a dilemma on Sotomayor. He supported her in 1998 but now faces a GOP challenger in a very conservative state, and said he looks “forward to thoroughly reviewing her record.”
That primary challenger, state Attorney General Mark Shurtleff, said in an interview with The Hill that he’s open-minded but is concerned about Sotomayor’s comments that she, as a Latino woman, might have a better judicial perspective than a white man.
“She clearly has to answer some questions about her judicial attitude about who she is and whether that’s going to make her any better of a judge,” Shurtleff said.
Another GOPer challenging the establishment, former Florida state House Speaker Marco Rubio, also expressed concern. Rubio, a Cuban-American battling Gov. Charlie Crist for the party’s Senate nomination, raised questions about the potential first Hispanic justice’s record.
“Judge Sotomayor deserves a fair hearing and respectful treatment, but there is much in her legal background that is troubling and demands scrutiny and honest discussion,” Rubio said.
While congressional Republicans are taking a cautious approach to Sotomayor, potential GOP presidential candidates weren’t following suit, as former Massachusetts Gov. Mitt Romney and former Arkansas Gov. Mike Huckabee both unleashed potent attacks on Sotomayor on Tuesday.
Huckabee said on his Huck PAC website that Sotomayor’s confirmation would lead to an “Extreme Court.”
“The appointment of Sonia Sotomayor for the Supreme Court is the clearest indication yet that President Obama’s campaign promises to be a centrist and think in a bipartisan way were mere rhetoric,” Huckabee said.
Romney was a little softer, saying Sotomayor deserved a fair hearing. But he also criticized her comments on legislating from the bench.
“Historically, the court is where judges interpret the Constitution and apply the law,” Romney said. “It should never be the place ‘where policy is made,’ as Judge Sotomayor has said.”