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What Could Go Wrong?

For Sonia Sotomayor, anything.

5:00 PM, May 26, 2009 • By FRED BARNES
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Don't count Sonia Sotomayor as one of the justices of the Supreme Court quite yet. Yes, the odds of her winning confirmation as the first Hispanic woman on the court are almost prohibitive, especially since Democrats have an overwhelming majority in the Senate. But the odds are 90 percent, maybe 95 percent--but not 100 percent.

So it's not over yet. High court nominees who look unassailable on the day they're nominated sometimes crash and burn even before they're voted on. And that includes nominees with more impressive credentials than Sotomayor. Here are four pitfalls that, by themselves or when two or three are combined, could doom Sotomayor's nomination.

Things turn up. No matter how extensively an administration investigates a nominee, it can't look into everything. Meanwhile, the national visibility of a Supreme Court nominee, like that of a presidential candidate or a Cabinet pick, has a way of bringing out damning information from detractors who otherwise wouldn't get involved.

There may be nothing troubling in Sotomayor's past, but we don't know for sure. In 1991, Clarence Thomas was considered a sure bet for confirmation until Anita Hill was coaxed by friends into testifying against him. Hill's story may or may not have been true (I didn't believe her), but she nearly derailed the Thomas nomination. He was confirmed, 52-48.

In 1968, Justice Abe Fortas was considered a shoo-in to be elevated to chief justice. But his moonlighting as an adviser to President Johnson and acceptance of dubious "lecture" fees for minimal work put his nomination in jeopardy. Republicans dragged out of the deliberations until Congress adjourned, killing the nomination.

Judicial philosophy. There was a time when this wasn't supposed to be a consideration, but now it's an important one. It was a huge factor in the Senate's rejection of Robert Bork in 1987 and played a large part in the defeat of Supreme Court nominee G. Harrold Carswell in 1971.

They were judicial conservatives. Sotomayor is a liberal judicial activist who fulfills President Obama's criterion that a justice should let "empathy" influence his or her decisions. Sotomayor said in 2005 that the Second U.S. Circuit Court of Appeals court on which she sits is "where policy is made." In 2001, she said "a wise Latina woman . . . would more often than not reach a better conclusion than a white man" without her rich experience.

In her confirmation hearing, Sotomayor will be questioned vigorously by Republicans about these controversial (if not outlandish) statements and her responses could get her in deep trouble. My guess is she'll play down those comments and insist, as she did moments after Obama announced her nomination, that she's committed to the "rule of law" and the "principles" laid down by the Founding Fathers. Still, her philosophy is a potential stumbling block.

Bad witness. It hurts when a nominee comes across unfavorably during the confirmation hearing. Bork suffered mostly because of his philosophy and because Democrats had taken control of the Senate in the 1986 midterm election. Liberal Democrats loathed him. Bork made no attempt to assuage them, refusing to sugarcoat his views. Bearded and gruff, he didn't project a particularly appealing personality either.

Sotomayor has a reputation as difficult to get along with. In an article by Jeffrey Rosen in the New Republic, former clerks of other judges on her court questioned her temperament and her tendency to be "a bully on the bench." She'll need to be on better behavior when she appears before the Senate Judiciary Committee in several weeks.

A potential witness may give dramatic testimony against her. Frank Ricci is a firefighter in New Haven, Connecticut, who worked and studied to qualify for a promotion, only to be held back by a ruling of Sotomayor and her court. Ricci would have advanced except for his race. He's white.

Filibuster. The conventional wisdom in the press and political community is that Republicans would be crazy to block an Hispanic woman. But John Kyl of Arizona, the Senate Republican whip, has declined to rule out a filibuster. Democrats, after all, paid no political price in 2003 when they barred the nomination Miguel Estrada, a Hispanic, to an appeals court judgeship.