She rests her case

By Michelle Chen May 26, 2009

Yep, he did. President Obama has tapped Sonia Sotomayor for highest court in the land. The Senate Democratic majority ensures that the confirmation of the first Latina Supreme Court justice should be relatively smooth sailing. But the opposition won’t go down without a fight. Hence the onslaught of political contortions aimed portraying Sotomayor as a radical judicial activist/scary Latina feminist/underqualified diversity pick. Yet due to her reputation for principled independence suffused with real-world experience (not to mention the fact that she was picked for the federal district court by Dubya’s daddy), the loudest critics don’t have much to stand on. Tom Goldstein at SCOTUS Blog anticipates classic political ploys, though Sotomayor’s record speaks for itself:

Opponents’ first claim – likely stated obliquely and only on background – will be that Judge Sotomayor is not smart enough for the job.  This is a critical ground for the White House to capture.… Nothing suggests she isn’t the match of the other Justices. The second claim – and this one will be front and center – will be the classic resort to ideology:  that Judge Sotomayor is a liberal ideologue and “judicial activist.”  (Put to the side the emptiness of the labels – i.e., that one person’s principle (e.g., a decision invalidating state laws authorizing punitive damages) is another’s “activism.”)  There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left.  Our surveys of her opinions put her in essentially the same ideological position as Justice Souter. 

If those arguments don’t pan out, hypocrisy, shrill animosity and racist code words are always good fallbacks. Dahlia Lithwick at Slate muses on how far some will stretch to vilify Sotomayor as an enemy of the state (i.e. someone with an unusual degree of empathy and a moving background story):

Washington Post columnist Charles Krauthammer was also quick to condemn Sotomayor on Fox News today, warning that her "concern for certain ethnicities overrides justice." And even though Sotomayor has decided only a single abortion case (against the abortion-rights side), Charmaine Yoest, president of Americans United for Life, rushed to describe her as "a radical pick" who "believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the National Abortion Control Board." The case against Sotomayor—to the extent it’s being made, is that her life is such a tumultuous blend of personal hardship and deep feeling that she cannot separate the law from her own agenda. In short, she feels too much.

David Corn thinks progressives may be better off letting the right tie itself in knots in a losing battle:

…there will be rightwing advocacy groups exploiting the moment by sending out dire-sounding direct mail and blast emails to raise money off this pick. But all this does not make for a concerted and coordinated opposition the White House has to fret about…. By selecting Sotomayor, Obama is forcing Senate GOPers to choose between attacking a Hispanic appointee (and possibly alienating Hispanic voters) and ticking off social conservatives.

And the left should perhaps start asking tough questions of its own, since Sotomayor’s stances on executive power and civil liberties have been largely untested. Marjorie Cohn of the National Lawyer’s Guild is hopeful but vigilant:

Although she will likely be called upon to review Obama’s decisions on interrogation policies, preventive detention and the state secrets privilege, Sotomayor’s views on executive power are largely unknown. But with this pick, Obama has missed an opportunity to tap a liberal intellectual giant like William Brennan who will have a major impact on the Court for years to come.

From the looks of it, Sotomayor’s nomination may inspire diverse debate, for once, about real constitutional issues, because contrary to expectations she is not ideologically enchained to the left nor the right. In her now-famous speech at Berkeley, she suggested that true impartiality is mere "aspiration." As a jurist, however, she’s approached that ideal in ways that might surprise all kinds of people in Washington. Image: Mark Lennihan/Associated Press