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History Shows Supreme Court Confirmation Process Often Unpredictable

Senate confirmation hearings begin July 13 for Judge Sonia Sotomayor, President Barack Obama's choice for the U.S. Supreme Court. Experts say that Sotomayor's confirmation is likely, given the Democrats' majority in the Senate. But history shows that the confirmation process can be unpredictable.

If confirmed by the Senate, Judge Sotomayor would become the country's first Hispanic Supreme Court justice.

From humble beginnings in New York City to some of the country's finest universities, Sotomayor would also fulfill the president's desire to appoint a Supreme Court justice with a diverse background and experiences.

"I strive never to forget the real world consequences of my decisions on individuals, businesses and government," she has said.

Sotomayor can expect to face hours of questioning about her background and legal views when her nomination is considered next month by the Senate Judiciary Committee.

Jeffrey Rosen teaches law at George Washington University and was a recent guest on VOA's Encounter program.

"The American confirmation process for the Supreme Court is an elaborate Kibuki dance, a kind of ritual where senators ask long-winded and often unfocused questions, and the nominees elaborately dodge and weave and try not to answer them. So the amount of light that emerges from this remains to be seen," Rosen said.

Veteran Washington political insider Tom Korologos knows the process well. He has helped several Republican presidents with their Supreme Court nominees, beginning with President Richard Nixon in 1971.

"In the early days, nominees got approved the same day they got named. And it has now become very contentious. It is a function of this town in which we live. The town has gotten very partisan," Korologos said.

Korologos says the key to the confirmation process is for the nominee to let the senators do most of the talking at the hearings.

"What I advise nominees is that you must follow the 80-20 rule. The 80-20 rule is that if they are talking 80 percent of the time and you (nominee) are talking 20 percent, you are winning," he said. "The hearing is not about you, it is about them, and they want to show that they understand the issues and they want to make their points across. As they are asking the question they are making their point, so you better listen."

Korologos says one past nominee who failed to follow his advice was Judge Robert Bork. He was nominated to the high court in 1987 by President Ronald Reagan, but was eventually voted down by the Democratically-controlled Senate.

Bork and his Republican supporters never forgot what they considered to be unfair treatment at the hands of Senate Democrats.

"To be quite frank about it, the amount of disinformation and falsehoods told about me were such that I do not think the country conceivably could have understood the case (my nomination) on the merits," Bork said.

Four years later, another bitter confirmation fight took place over the nomination of Judge Clarence Thomas. Thomas was a conservative African-American nominated by President George H.W. Bush.

During the Senate hearings, Thomas had to fend off allegations of unwanted sexual advances on an associate. He was eventually confirmed. But the process was politically polarizing for the country and left Thomas embittered, even though he won Senate approval.

"This is a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am concerned, it is high-tech lynching for uppity blacks who in any way deign to think for themselves," Thomas said.

In the case of Judge Sotomayor, Republicans have promised rigorous, but fair hearings.

In addition to Sotomayor's legal opinions, Republicans are expected to ask about remarks she made in 2001 when she said that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has not lived that life.

Robert Alt is with the conservative Heritage Foundation in Washington.

"I think what is causing a great deal of trouble for most people is that, in fact, she has made some suggestions with regard to ethnicity and ethnic superiority that have raised hackles, and which are giving the White House some trouble in responding to," he said.

Even though they are in the minority in the Senate, Republicans could try to block Sotomayor's nomination through a parliamentary delaying tactic known as the filibuster.

But political experts say that is unlikely because Democrats control 59 of the 100 Senate seats. In addition, Republicans may be wary of politically offending Hispanic voters, the country's fastest growing demographic group.

Legal expert Jeffrey Rosen expects that Sotomayor will be easily confirmed.

"In the end, the sheer political symbolism of the first Hispanic justice, with this compelling life story is so overwhelming that it will be difficult for Republicans as well as Democrats to resist that. I think she will be handily confirmed to the United States Supreme Court," Rosen said.

Historically, the record shows that Judge Sotomayor's confirmation is likely, but not a certainty.

According to the Senate historian's office, 28 of the 158 nominees to the Supreme Court have been rejected since 1789. This is a failure rate of about 18 percent, or nearly one in five.