Barack Obama's nomination of Sonia Sotomayor to replace David Souter on the Supreme Court is attracting considerable editorial reaction.
Much of it seems to be knee–jerk and predictable:
- The New York Times calls her an "inspired choice" who would be a "trailblazing figure."
Much has been written about the quests made by previous presidents to find an Hispanic judge for the Supreme Court — in part to appeal to the fast–growing Hispanic community.
But if such choices are made with the belief that it will permanently attract a large, elusive demographic to the president's party, they are misguided. Nearly 30 years ago, Ronald Reagan nominated the first woman to the Supreme Court. Reagan did win the support of women when he sought re–election in 1984 — even though the Democrats put a woman on their ticket — but the Republicans have been losing women in most elections ever since.
For that matter, George W. Bush appointed both blacks and Hispanics to positions within his administration, but neither group has shown much loyalty to the Republican Party.
The Times finds Sotomayor's personal story moving but is quick to add that she is "more than just a distinguished member of two underrepresented groups. She is an accomplished lawyer and judge, who could become an extraordinary Supreme Court justice."
Adam Liptak writes, in the Times, that Sotomayor's judicial opinions are"marked by diligence, depth and unflashy competence," but warns that she has "issued no major decisions concerning abortion, the death penalty, gay rights or national security."
Sotomayor's track record, suggests Liptak, makes her "remarkably cursory treatment" of an employment discrimination case last year "baffling." That ruling, which many observers expect to be the centerpiece in Sotomayor's confirmation hearings, "contained a single paragraph of reasoning," Liptak writes.
The case has been appealed to the Supreme Court and its ruling is pending. - The Washington Post is a bit more restrained but nevertheless approving of the selection.
"Senators are right to closely scrutinize Judge Sotomayor's philosophy and qualifications," writes the Post. "She has produced a rich record of opinions as an appeals court judge for the Judiciary Committee to discuss. Senators also should remember that Mr. Obama, like any president, is entitled to deference in choosing a justice."
With a solid Democratic majority in the Senate, it's hard to imagine a Democratic president encountering much difficulty winning the confirmation of a Supreme Court nominee. But unforeseen things happen all the time.
Even if something unexpected doesn't pop up during the confirmation hearings, there is plenty in Sotomayor's documented history to discuss — not just her rulings from the bench but her statements in speeches. The Post cites one from 2001:"The aspiration to impartiality is just that — it's an aspiration because it denies the fact that we are by our experiences making different choices than others. ... Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . ... I am not so sure that I agree with the statement. First, ... there can never be a universal definition of wise. Second, 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."
The Post's Robert Barnes and Michael Fletcher write that Sotomayor is the "most controversial of [Obama's] potential nominees."
They also remind readers that, assuming she is confirmed, Sotomayor may not be the first Hispanic member of the Supreme Court. Benjamin Cardozo (whose 139th birthday was Sunday, by the way) was said to have ancestors from Portugal, but he never acknowledged any Hispanic lineage. Perhaps he felt being Jewish was enough of a hurdle when he was chosen to replace Oliver Wendell Holmes in the 1930s. - As I wrote on this blog last week, Bill Schneider pointed out on CNN that survey respondents felt it was more important to have a Supreme Court nominee with judicial experience than it was to have a woman, a black or a Hispanic nominated.
As it turned out, Obama multi–tasked on this nomination. Sotomayor brings extensive judicial experience with her to the confirmation hearings — and she is an Hispanic female.
But the New York Post seems only to see the demographics.
"Once confirmed, she will join Ruth Bader Ginsburg as the High Court's second reflexively liberal, Ivy League–educated, female, former appellate jurist from the Big Apple," writes the Post. "Diversity for thee, but not for me — right, Mr. President?"
Even so, the Post makes a point when it asks, "[D]id Obama make the most of his first opportunity to push the High Court to the left?"
The Post observes that Obama could have picked someone who had a record of defending progressive principles, and, apparently, there were several such names on his list. "It's hard to imagine any of them refusing the opportunity to attempt a principled defense of affirmative action," writes the Post, but Sotomayor, who was chosen to succeed a progressive jurist, did — in the employment discrimination case I mentioned earlier.
Obama has made his position on abortion well known, but he has come across as less than supportive of gay rights or marijuana legalization, two issues that many of his supporters hoped would have a champion in the White House. Sotomayor's positions on those issues, as well as how she stands on national security issues or the death penalty, are unclear.
Even though the confirmation hearings and the Senate as a whole will be controlled by Democrats, I hope the proceedings will not be a rubber–stamp for her nomination, that we will get some idea of where she stands before she is confirmed.
If not, she may well prove to be the kind of unpleasant surprise that Souter turned out to be for George H.W. Bush — a mysterious nominee whose legal views turn out to be different from what the president anticipated.
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