President Barack Obama seemed to have lost his deft touch in recent weeks as several controversies simmered then exploded out of his control, making his life miserable and exposing his administration to criticism from some unlikely sources — including his own far left base and the press.
Stung by this sudden and unprecedented sign that the media was waking from its long winter nap, the president needed a plus in his column in order to right his own ship, if only temporarily.
That opportunity came with the vacancy on the Supreme Court created when David Souter announced he would step down at the end of the current session. Here was a chance for the president, in one fell swoop, to get back in the good graces of liberals while taming the media to lie down and go back to sleep.
In that respect only, President Obama hit a home run with his selection of Sonia Sotomayor for associate justice of the United States Supreme Court.
It’s a miserable choice for conservatives as Roger Kimball points out in his PJM post on the announcement. But beyond questions of qualifications, temperament, and intellectual heft, Sotomayor is the perfect political choice for the president. Playing identity politics to the hilt, he has chosen a liberal woman and a member of an important minority group — Hispanics.
Kimball suggests we identify her as “Sonia Sotomayor, the first Hispanic nominee to the Supreme Court” as a matter of course. No doubt every time her name is mentioned on CNN and MSNBC that fact will be hammered home, just as the president intends it to be. In fact, Obama is counting on the fact of his ethnically correct choice to surround the nominee with a magic cloak of invincibility that will strangle some of the more obvious criticisms that will be coming from the GOP.
One of the major criticisms will almost certainly be her already notorious statement that race alone can be an elevating factor in judicial discernment:
I would hope 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 hasn’t lived that life.
Aside from being offensive, it speaks to a judicial philosophy where “outcome” will be more important than the law. Ilya Somin of the Volokh Conspiracy points out something else:
Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law” and instead believes that we should embrace the fact that “our gender and national origins may and will make a difference in our judging.”
If that weren’t bad enough, try this one on for size, my conservative friends:
Look at this clip from a 2005 symposium at Duke University. The Court of Appeals, said Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, “is where policy is made.” She went on to note that she shouldn’t say that publicly — after all, cameras were rolling — but that, she said, was the truth of the matter. I hope that video clip is played early and played often.
A judge who has plainly stated she believes in the dubious principle of outcome-based decisions coupled with a God-complex that gives her permission to, in effect, prorogue the legislature and make her own law when it suits her — is this a recipe for disaster on the court or what?