Winning the Sotomayor Witness Game


Generally, the witnesses in a Supreme Court confirmation hearing take a backseat to the nominee himself. Sure, there was Anita Hill and all of the drama surrounding Clarence Thomas's extraordinary confirmation hearings. But can you remember anything about those who testified for or against Sam Alito or Ruth Bader Ginsburg? I couldn't. In general, it's the interplay between the senators and the nominees themselves that attracts attention. But this time it could be different. Both sides have tapped big guns for and against the nomination of Sonia Sotomayor to be the first Hispanic and only the third female associate justice in the history of the Supreme Court. I'd give a slight edge to the GOP, for sheer cleverness in designing their witness list. Here's why.

The star of the Republican side will be Frank Ricci, the New Haven, Connecticut Firefighter who prevailed in the Supreme Court in the recent affirmative action case. The Supremes overturned the Second Circuit ruling that Sotomayor supported, which upheld New Haven's affirmative action plan. Ricci makes an extremely sympathetic witness, something that Ruth Bader Ginsburg acknowledged to Emily Bazelon in The New York Times Magazine. Dyslexic, he studied like a demon for the firefighters exam only to lose out his promotion. He'll be a compelling witness and one the networks will surely turn to for sound bites. That said, most of the rest of the Republican picks are what you would expect, including perennial affirmative action critic Linda Chavez of the Center for Equal Opportunity. (I was a staffer at the Civil Rights Commission in the 1980s when Chavez was executive director.)

The Democrats hauled in some good names. Mike Bloomberg will be there offering some swagger and independent elan to the proceedings. Former Mets pitcher David Cone will extol Sotomayor's role in ending the 1995 baseball strike. He probably won't get much air play but I think the decision to haul in former FBI Director Louis Freeh might even sway some wavering Republicans. Freeh, an acclaimed federal judge and prosecutor in New York, was made FBI director by Bill Clinton and became a White House nemesis on everything from Monica Lewinsky to that pseudo-scandal about Chinese missile technology. He has a lot of cred with Republicans, and I think he could make it easier for the likes of Orin Hatch or Lindsey Graham to vote for Sotomayor.

The rest of those testifying, from various professional legal groups and law school faculties, won't stir much interest. New Yorkers may find it interesting to hear the account of legendary Manhattan District Attorney Robert Morgenthau, for whom Sotomayor worked, but others probably won't.
Still, it's the most interesting list for a Surpeme Court nominee in almost 20 years since Americans sat riveted to the Thomas hearings.

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Matthew Cooper is a managing editor (White House) for National Journal.

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