The death penalty's arbitrary (indeed, haphazard) application raises obvious questions about the impact race (as well as wealth) has upon death sentences. That Sotomayor recognized those concerns more than ten years before she became a federal judge does not disqualify her from a seat on the Supreme Court. Nor does her expression of opinions about an issue of public importance long before she donned a black robe render her unsuitable. It would be strange to think that the only citizens who are fit to sit on the Supreme Court are those who have taken no interest in questions of public policy. Certainly, an affiliation with conservative organizations that hope to influence public policy -- most notably, the Federalist Society (pdf) -- has not been regarded as a bar to judicial confirmation.

Conservatives will argue that Judge Sotomayor's endorsement of opinions that liberals tend to share concerning the death penalty proves not only that she has prejudged questions that may come before the Court, but that she will be a "liberal activist" if confirmed. When the Judiciary Committee asks the judge about her current view of the death penalty, her answer (whatever it may be) will surely be accompanied by the obligatory "my personal views, of course, will not influence my duty to follow the law." That answer will be meaningless, but meaningless answers to rhetorically charged questions have become the norm in judicial confirmation hearings. If the Senate believed Chief Justice Roberts when he said he would be a neutral umpire or Justice Alito when he claimed he would have no agenda but to be guided by "the rule of law," why shouldn't it believe Judge Sotomayor when she says (as she inevitably will) much the same thing?

Ultimately, conservatives want to air the 1981 memo because they expect white people to resent the charge that there is "evident racism in our society" or that American judges and juries (or prosecutors who make charging decisions) are swayed by considerations of race. Appeals to the "angry white man" are still central to the GOP playbook, but they've been rendered ineffective in a climate of anger about the white men who destroyed the nation's economy, squandered its military resources, and crippled its government. However the card is played -- whether Sotomayor is labeled a racist or painted as an angry Latina who makes unfair charges of racism -- it won't give the conservative faithful a winning hand.