A few hours before President Obama made the official announcement, we knew that Sonia Sotomayor would be his nominee to replace David Souter on the Supreme Court. And to no surprise – she has long been touted as a potential nominee for the bench.
With the official announcement made, there have already been attacks from the fringe of the American Right, and I think we can expect those attacks to drift toward the center as we get away from the festivity of the initial announcement and into the more serious mood of the confirmation process.
I should start my evaluation by saying right off the bat that I have a pretty conservative judicial philosophy. A judge’s job is to interpret legality, not morality. And while we hope our legislatures will make those two one-and-the-same, it is imperative that we recognize that there is not a perfect overlap.
Looking at Ms. Sotomayor’s record – albeit a cursory look – I think there are a couple of blemishes on an otherwise distinguished legal career. And comparing my greatest qualms with the apparent issues raised by members of the Right, I think that the Conservatives are already making a significant mistake in their strategy to oppose this nomination.
Some of the most vehement voices seem to be suggesting that Ms. Sotomayor is underqualified. I think trying to put this woman in the same camp as Harriet Miers is a *HUGE* mistake. Ms. Sotomayor rose from relative poverty in the Bronx to graduate at the top of her Princeton Class and to be a distinguished member of the Yale Law Journal and numerous intellectual societies. Questioning her outright intelligence and legal knowledge is beyond asinine.
Ms. Sotomayor is also widely-considered relatively moderate, and has already gotten significant praise from Freedom Watch. While she is certainly a little left leaning, she is nowhere near as far left as Mr. Obama could have reached for. One should remember that George H.W. Bush, the same president who appointed David Souter, elevated Ms. Sotomayor to the Federal Bench with the support of several Republicans who are still in the Senate today. It will be interesting to see if they will vote for her a second time.
Now that I have praised her merits:
There are a couple of questionable things that it will be the Republican’s job to exploit and to make Ms. Sotomayor sufficiently answer for during the nomination process.
One is this verbal faux pas in which Ms. Sotomayor states that policy is made in the Appellate Courts – something which she immediately realized was a mistake to say on video. Her following explanation, however, is hardly a satisfactory one, and the Republicans need to give her a chance to roll that statement back and allay their fears of her possible judicial activism.
The other and more recent issue is the Ricci v. Destefano case, in which Ms. Sotomayor upheld the district court ruling in her capacity as an appellate judge and which now is going before the Supreme Court. The case is a travesty of civil rights in which New Haven firefighter Frank Ricci gave up a second job to devote his full time to studying for a promotion exam that was highly regarded as an objective measure of ability, and paid a friend $1,000 to have the study material read onto audiotape because he is dyslexic, only to have the test results thrown out because not enough minorities passed. Nevermind that Mr. Ricci placed 6th and sacrificed untold income and time to do so. Ms. Sotomayor will have to provide a sound explanation as to why she ruled against this man.
The above issues I have discussed are intellectually and philosophically legitimate questions that Ms. Sotomayor should have to answer for Conservatives. By launching baseless attacks on Ms. Sotomayor’s stellar qualifications, the Conservative faction in this country is wasting valuable time and energy on erroneous arguments, while detracting from their ability to make Ms. Sotomayor accountable for the things in her past that are the most indicting. As the more moderate wing of the Republican party takes up skepticism this summer during the nomination proceedings, let us hope that they will pick more just battles than their radical counterparts have today.
Make no mistake – barring utter catastrophe, Ms. Sotomayor will be the next Supreme Court Justice of the United States. But that does not mean that there is no opportunity here for Republicans to articulate their philosophy and score some political points in the nomination process by putting forth the right challenges for Ms. Sotomayor to address, specifically with regards to her judicial philosophy and her view of civil rights.
With a minor course correction now, they can still do just that.