There are three very obvious things for the Republicans to attack. The first is this video.
In it, Sotomayor intuitively acknowledges that what she said is controversial by proclaiming that she knows this is being taped. She makes the assertion here that appeals court justices make policy. Of course, that isn't how the Constitution intended it. The Congress makes policy. The Court System is supposed to judge the Constitutionality of said policy. If I am the Republicans, I would come up with as many questions as possible related to this video. Remember that Ted Kennedy used his entire 15 minutes to hammer Justice Alito over his membership in some organization at Princeton. I believe that either Sotomayor will tie herself up in knots trying to explain this or she will simply walk herself back and say something totally different than what she said in the video. Either way, a serious lack of credibility can be created.
The second is this statement.
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.
This is not only offensive but frankly racist. I am really sick and tired of minorities getting away with patently racist comments that whites would never get away with. Flip that statement around and replace white with latino and vice versa and see just how offensive it would be. I tracked a similar phenomenon with Sun Times Columnist Mary Mitchell. In one column, Mitchell said this.
white people don't get it, black people do, now it's time to move on
Now, imagine a white person saying the opposite. What Sotomayor said should be offensive to everyone and she must be held to account. Her comment is indefensible and so she would either walk back from it or tie herself in knots trying to explain it. Either way, it is something the Republicans need to explore fully.
Also, Sotomayor has a very sketchy record on the Second Amendment. In a decision in the case of Maloney v. Cuomo, Sotomayor ruled that states and municipalities are well within their rights to ban gans because the 2nd Amendment only applies to the federal government and not to states and municipalities. This is a position that needs to be explored. The 2nd Amendment is among the best so called wedge issues for Republicans.
I would also ask Sotomayor about President Obama's judicial philosophy. I would be curious to see how she responds about her views on "empathy" on the bench. How would she apply empathy on the bench? Does she believe that the Supreme Court should be a tool of social justice? How would she apply social justice in decision making?
The Constitutional ramifications of all of this are huge. Such a philosophy sees a very expanded power of the federal government in applying all of these principles. Sotomayor is likely to have very little regard in state's rights, for instance, when those states apply those rights in a way that doesn't benefit the poor. She likely sees the power of the federal government to be far beyond that which is enumerated in the Constitution. For instance, a strict constructionist would see universal health care as unconstitutional since the power to provide health care isn't enumerated in the Constitution. Sotomayor would take the opposite position.
By November 2010, I believe that more than not, the American people will tire of all of the massive government expansion and power. There are only so many industries that the government can run before the people turn. The choice of Sotomayor can be used as a part of larger narrative of a White House drunk on power with a very expansive view of its authority. The time to start building that case is with this pick and I have laid out the guidelines to do this.