Barack Obama has named his nominee for the Supreme Court, Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals. What's the likely fallout, politically and judicially?
Politically, Obama gets a plus for naming the first Hispanic justice (unless one counts Benjamin Cardozo, nominated in 1932, a descendant of Portuguese Jews). Sotomayor has an appealing biography: She grew up the daughter of Puerto Rican parents in the Bronx, had a fine academic record at Princeton and Yale Law School, served in the U.S. Attorney's Office in Manhattan, and practiced commercial law. Republicans delayed her confirmation for the appeals court in the 1990s for the same reason that Democrats delayed and prevented the confirmation of Miguel Estrada for a judgeship during the first Bush term: To prevent the other party from promoting a Hispanic who would be a plausible Supreme Court nominee.
Sotomayor is that; she clearly meets the minimal standards for the job. Republicans are unlikely to prevent her confirmation, and Democrats can tell Hispanic voters they put one of their own on the nation's highest court.
It remains to be seen whether Sotomayor will prove as charming and articulate in her confirmation hearings as Chief Justice John Roberts was in 2005. And she will presumably have to defend some of her public statements. Such as, "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."
That amounts to an assertion that some Americans are more likely to have the "empathy" that Obama said he sought in a nominee because of their gender and ethnic origin. It's not clear that most Americans agree. Pollster Scott Rasmussen reports that 45 percent of Americans believe that legal background and competence are the most important qualities for a nominee, while only 27 percent believe that diversity is the most important. Independents on this issue, as on several others lately, are more like Republicans than Democrats: Fifty percent say legal background and competence are more important.
Sotomayor is not the first nominee chosen for her personal characteristics. But identity politics is not necessarily a political plus for most voters. All of us have only one gender, and only a limited number of ethnic identities and personal experiences. But we don't like to think we're incapable of entering into a sympathetic understanding of those of different backgrounds.
Which leads to the second question: What would a Justice Sotomayor mean judicially? In a widely noted New Republic article, liberal analyst Jeffrey Rosen quoted former 2nd Circuit law clerks and observers as having reservations. One anonymous source said she was "not that smart and kind of a bully on the bench."
If that's a fair assessment, Justice Sotomayor might not fit in particularly well in a court whose current justices, by all accounts I've heard, have excellent personal relations with and respect for each other despite their sometimes sharp disagreements. Half a century ago, most justices came from political backgrounds; this court's members brought distinguished records from academic life and appeals courts or have demonstrated similar high abilities in their opinions. Rosen expresses the fear that in this company Sotomayor may not prove an effective advocate for her liberal views. Which way that cuts presumably depends on what you think of those views.
One case currently before the court may be on point. Several white firefighters and one Hispanic firefighter sued the city of New Haven for setting aside the results of an examination because no black firefighters qualified for promotion. The federal trial court ruled this did not violate civil rights statutes, and a three-judge panel of the 2nd Circuit, including Sotomayor, affirmed, without a written opinion. This looked to many like a stealth strategy to protect racial preferences from legal attack.
In this case, Sotomayor seemed to share the view of legal elites that racial preferences must be defended, even at the sacrifice of candor, against all attacks. But most Americans tend to agree with Martin Luther King that people should be judged by the content of their character rather than the color of their skin. The Supreme Court is expected to rule on this in June, probably just before Sotomayor's confirmation hearing. Is this an issue that Obama and the Democrats want to litigate in the court of public opinion?
Michael Barone is a resident fellow at AEI.