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The Honolulu Advertiser
Posted on: Monday, July 20, 2009

It was not smooth sailing for Thomas


By Jules Witcover

Hawaii news photo - The Honolulu Advertiser

Unlike Clarence Thomas, Supreme Court nominee Sonia Sotomayor emerged fairly unscathed from her Senate review.

J. SCOTT APPLEWHITE | Associated Press

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Sonia Sotomayor's "failed rhetorical flourish" about a "wise Latina" being likely to produce a better judgment than a white male got plenty of mention in her confirmation hearings. But her ethnicity had very little to do with the relative ease with which she navigated the waters of her Senate Judiciary Committee grilling.

She wore her rise from humble beginnings like a Girl Scout's merit badge, but she said nothing to lay claim to special consideration as the first Hispanic-American nominated for the Supreme Court. But that fact was an obvious political plus considering her ethnic identity is part of the nation's fastest-growing voting bloc, and required no ethnicity pitch.

Instead of trumpeting her ethnic heritage, or as in the lamentable case 18 years ago of Clarence Thomas blatantly playing the race card, Sotomayor relied on her judicial rulings over 17 years to convince questioning Republican committee members that she deserved confirmation.

Her hearings were in sharp contrast to the last time an ethnic or racial identification was conspicuously involved in a Supreme Court nomination — in the stormy Thomas hearings before the Senate Judiciary Committee in 1991.

Then, Thomas deliberately accused his critics of racism in challenging his nomination.

At first, Thomas, like Sotomayor later, declined to be drawn into any dialogue on how he would rule on any specific issue likely to come before the court, such as abortion. But when allegations of sexual harassment against him surfaced late in the hearings, brought by a former employee who, like Thomas, was an African-American, all hell broke loose.

Thomas flatly denied the specific allegations or even to discuss them, choosing instead to accuse the committee of conducting "a high-tech lynching for uppity blacks," saying "I will not provide the rope for my own lynching or for further humiliation."

Unlike Sotomayor, though, Thomas had no lengthy and distinguished judicial record to recommend his nomination, having served only a year and a half as a lower-court federal judge. Indeed, his nomination by the first President George Bush, who called him "the most qualified" American for the vacancy created by the retirement of Justice Thurgood Marshall, met wide incredulity among the legal community.

In the end, Thomas's stonewalling, coupled with fears among some Democrats on the committee of the political backlash from black voters if Thomas was rejected for the seat of Marshall, an icon of the civil rights legal struggle, got him through, narrowly.

Doubts continued long afterward about whether Thomas should have been confirmed, as he became one of the bench's most silent partners.

Sotomayor's conciliatory if not entirely forthcoming testimony in her own hearings avoided generating any visceral opposition to her confirmation of the sort that developed in the Thomas nomination, especially when he so conspicuously and angrily played the race card.

As a lion-tamer in the circus that Supreme Court confirmation hearings too often have become, Sotomayor used soft words and warm smiles to keep the beasts on their pedestals rather than cracking her whip, as some legal critics had accused her of doing from her lower-court perch.

As a result, she seems likely to win support from at least several Republican senators along with all or nearly all of the 60 votes of Democrats and a couple of independents when the final roll call is taken well before the start of the next Supreme Court session this fall.

It seemed through the three days of Judge Sotomayor's testimony that the Republicans were doing little more than going through the motions in interrogating her, more about speeches she had made than specific judicial rulings. They found themselves up against not only an extremely well-versed and articulate legal mind, but also a savvy witness aware of the political potholes in her road to confirmation and easily able to avoid them.

Unlike Thomas, who has served and continues to serve under a cloud of doubt about his judicial stature on the highest bench, Sotomayor approaches her elevation to it with esteem for her untarnished by the process she has so successfully endured and survived.