The Wonk Room

What The GOP Witness List Reveals About Their Anti-Sotomayor Strategy

The Senate Judiciary Committee has released the list of witnesses who will testify at Judge Sotomayor’s confirmation hearings, thereby telegraphing much of their anti-Sotomayor strategy in the process.  Based on their lineup, it’s clear that Republicans plan to follow five lines of attack:

• Ricci

Front and center in the list of GOP witnesses is Frank Ricci himself, the New Haven firefighter whose promotion test results were set aside by that city, along with Ben Vargas, a lieutenant in the same fire department and Ricci’s co-plaintiff in his now-famous lawsuit.  The list also includes Peter N. Kirsanow, a George W. Bush appointee to the U.S. Commission on Civil Rights (and former witness in support of nominees John Roberts and Samuel Alito), and Linda Chavez, a former Reagan and Bush I Administration official and the head of a leading anti-civil rights organization.

From this list, it couldn’t be clearer that the Ricci case will be the point of the conservative spear against Sotomayor.  While Kirsanow and Chavez can be expected to testify like the GOP political operatives that they are, expect Ricci and Vargas to offer compelling statements.  By all accounts, both men were caught in unfortunate circumstances that they did not cause, and there is no indication that they are anything other than dedicated firefighters.  In other words, Republicans hope that the American people will be moved by Ricci and Vargas’ testimony and wonder why Sotomayor did not show more empathy for their circumstance.  The reason, of course, is that Sotomayor was following a binding precedent, and judges aren’t free to ignore the law simply because they are faced with compelling plaintiffs.

• Foreign Law

Recently, Senator Jeff Sessions (R-AL) gave a floor speech claiming–falsely–that some judges believe that foreign court decisions should govern U.S. law.  No one, including Judge Sotomayor, believes this.  Nevertheless, the witness list includes Neomi Rao, Nick Rosenkranz and John McGinnis, all right-wing international law professors who are likely to share Sessions’ delusion.  David Rivkin, an advocate of limitless executive power, may also testify on the subject of foreign law.

• Second Amendment

Next up are former NRA President Sandy Froman, along with David Kopel and Stephen Halbrook, both of whom work on Second Amendment issues for the right-wing Independence Institute.  All three of them will probably make the false claim that Sotomayor was hostile to the Second Amendment when she followed a binding Supreme Court precedent holding that the Second Amendment does not apply to the states.  Apparently, the law is optional when you are a conservative.

• Eminent Domain

Ilya Somin is a radical libertarian law professor who filed an amicus brief asking the Supreme Court to reverse Sotomayor’s decision holding that land developers must file their eminent domain claims within the three year statute of limitations.  The Supreme Court did not take Professor Somin up on this offer; apparently land developers have to follow the same laws as everyone else.

• Anti-Choice

Possibly the most interesting thing about the GOP’s witness list is that it only contains one anti-choice witness, Charmaine Yoest of Americans United for Life–additional evidence that cultural issues are losing their salience in American politics.

Additionally, the witness list contains one oddball, a management consultant named Tim Jeffries.  It’s unclear exactly what Jeffries has to contribute to this discussion.