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?
Yes, but the press will point out how nice she is (Did I mention she would be the first Hispanic named to the Supreme Court? Sorry, my bad):
Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family — working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.
I’m sure she’s a peach. But what about some other stuff that may impact more directly on whether she would be a good Supreme Court justice? Jeffrey Rosen writing in The New Republic:
I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with the New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”
Alright, so she’s not the brightest bulb on the legal chandelier, but that kind of thing never stops a president — Republican or Democratic — from naming someone for political reasons to the court.
And that’s what we are essentially looking at when discussing the Sotomayor choice. By being able to mute at least some of the firestorm of criticism that will descend on his SCOTUS choice, as well as pleasing a minority group that most analysts believe is still “up for grabs” electorally, the president has outflanked his GOP opponents. With one stroke, he repaired at least some of the damage done over Guantanamo, his riling the left over his resurrecting the military tribunals, the CIA flap with Pelosi, and his most recent statement that we’re “out of money.” At the very least, he has pushed those stories off the front pages and into the background as the battle begins over Sotomayor’s nomination.
Republicans, who were apparently relishing a fight that would leave blood on the floor of the Senate, now must tread more carefully. Many senators are from states with a large or a politically significant Hispanic population. Given how easily Obama was able to turn just about any negative statement made against him during the campaign into an attack on his race, it would seem logical he will repeat the tactic with Sotomayor — and probably achieve equal success. If Republicans aren’t careful, the Obama machine will make them look like anti-Hispanic bigots when all is said and done.
This won’t stop independent conservative groups from mounting a stiff campaign to oppose her. But as far as attack fodder to be found in her decisions made over the years in the Second Circuit, the respected SCOTUSblog believes most of her decisions “seem largely in line with those of Justice Souter.” It would be a hard case to make that she’s a judicial radical if the media touts her as having the same basic opinions as a justice appointed by a Republican president.
Therefore, the opposition will probably concentrate on the aforementioned statements made away from the bench in order to try and hang her as a far left activist judge. Whether the Republicans will adopt a similar tack on the Judiciary Committee or during any floor debate on the nomination remains to be seen.
One possible rich vein of attack to mine could be the fact that many of her majority opinions written on the Second Circuit have been overturned by the Supreme Court. But her supporters could point to decisions upheld by the high court which could blunt that argument.
So Republican senators are left with very few arrows in their quiver. It should go without saying that attacks of the kind initiated by Democrats against Republican nominees will not be forthcoming. Making the point that Sotomayor belongs to a group entirely made up of Hispanics or that her opinions will result in the death of poor women and children won’t get them very far and serve only to anger at least some Hispanics who might resent personal attacks on the nominee.
While the GOP is not without ammunition to use against Sotomayor, Obama has flummoxed them — at least for the time being. But unless some devastating personal peccadilloes emerge to torpedo her nomination, Obama and the Democrats have the votes to confirm her easily.