GOP’s Catch-22 on Sotomayor

What happens when you are fair and courteous and play by the rules? As any kid will tell you, you get beaten up anyway.

Senate Republicans, having decided on a remarkably disciplined, respectful response to the nomination of Sonia Sotomayor to the Supreme Court, have stunned Democrats who practically begged for them to criticize the historic selection of the first Hispanic woman to the high court. The beating, of course, has come from their own party: they get no gratitude for a keen strategy to undermine the nomination, just the wrath of the Cannibal Crowd in the GOP. Unelected conservatives who aren’t tasked with the responsibility of approving judicial nominations are attempting to take the process hostage and are threatening the ability of Senate Republicans to actually mount credible opposition or gain any political ground from the likely outcome of Sotomayor’s confirmation.

Within 48 hours of Sotomayor’s nomination the earth-scorching was complete — fire-breathers like Rush Limbaugh and former House Speaker Newt Gingrich (R-Ga.) called Sotomayor a racist. Gingrich has since backtracked, and Limbaugh says he might actually support her because she might not favor abortion rights, but now a group called the Third Branch Conference is dictating terms to the Senate GOP leadership, calling for a filibuster not to block the vote but to lengthen the debate. In a letter signed by 145 conservatives, the group asks Republican senators to “display leadership, if the nominee merits it, in preparing for the use of the traditional filibuster, not intended to obstruct, together with moderate Democrats, so that the debate on the Senate floor is appropriately long and, therefore, suitably catalyzed to the American people.” The letter ends with a stern warning: “the times have changed, and we expect more from you than once we might have.”

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Times certainly have changed; the Republican Party is in a shambles and lacking the numbers to succeed in blocking Sotomayor’s confirmation. Clearly, no distinction would be made between a real filibuster and a symbolic one. More importantly, Senate Republicans intend to make clear that they treat Supreme Court nominees differently than Democrats do, and that unlike then-Sen. Barack Obama (D-Ill.), they don’t support filibustering nominees. In all the statements released after Sotomayor’s nomination, many Republicans congratulated her, none expressed opposition, and all called for a fair and thorough process. The comparison with the Democratic response to Samuel Alito’s nomination to the high court is stark — members of their leadership not only said filibustering was on the table, they note they were “disappointed” and “disturbed,” they questioned whether Alito was too radical, and they said President Bush was beholden to the extreme right wing of his party.

“We’re doing what we asked of them to do with Alito and Roberts,” said a GOP Senate aide. “This is what we called for and we’re being consistent. It gives us some true credibility if he [Obama] puts up a psychopath for the next one.”

Senate Republicans have placed their bets on consistency and cohesion. If they hang tight on Sotomayor, they can credibly raise questions about activism, empathy and the prospect that President Obama’s standards for jurisprudence will forever change the Supreme Court. In doing so, Republicans would not only position the party for future battles on the coming vacancies Obama is likely to have to fill, but would likely enjoy immediate political dividends.

For now, Senate Republican leaders can take credit for moving the debate on Guantánamo Bay. They have managed to back President Obama and his party into a corner. A new USA Today poll reveals American voters are now opposed by a two-to-one margin to closing the prison.

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I wonder if all those conservatives remembered to mail those Senate GOPers a thank-you note.

Stoddard is an associate editor of The Hill.