It is tempting to rush to judgment concerning President Obama’s first Supreme Court nominee, Sonia Sotomayor. Judge Sotomayor has a fairly extensive judicial record which is already being mined by the media for juicy tidbits.
However, there is a reason that the Senate holds confirmation hearings. Judge Sotomayor should be afforded the opportunity to participate, through her statements, in the public re-definition of herself as a jurist that accompanies every Supreme Court nomination. So, like the Senate GOP, I am going to refrain from taking a position until I’ve heard more from the judge herself.
I will make a few comments, though. The first is that as a general rule, I think the President should be entitled to the benefit of the doubt when it comes to his nominees – for the Court, the Cabinet, or any position. A difference in political ideology should not be sufficient grounds to oppose a Presidential nominee. Sotomayor is unquestionably a liberal. Well, duh. Did you think Obama was going to appoint a conservative? If he were to withdraw Sotomayor’s nomination for any reason, his second choice is not going to resemble Antonin Scalia. So it would be silly for the GOP to oppose Sotomayor simply because she’s a liberal. Nor does Sotomayor’s record suggest that she votes in a knee-jerk or thoughtless fashion. In fact, she’s rather known for aggressive questioning of appellants.
Of course, the judicial record I mentioned above contains a number of controversial items that I would argue are legitimate areas of concern. For example, Sotomayor is on record as stating that the Second Amendment only applies to the federal government and not to the several states. That argument, generalized to cover the other Amendments in the Bill of Rights, would allow states to abrogate rights such as free speech and freedom of religion if their state constitutions allow it. Thus, I will be eager to hear how Sotomayor chooses to put this portion of her record in context when it comes up during the hearings, as it surely will.
However, one must keep in mind the political context of this nomination. Assuming no major bombshells arise to derail the nomination, Obama can count on the votes of most Democratic Senators and one or two Republicans, who do not care to vote against her because she is (pick one) liberal, female, or Hispanic. This means that no matter how long the blustering goes on, Sotomayor is likely to be confirmed. Conservatives will have to gauge whether it is worth making a stink over Sotomayor’s record and risk being painted as racist or sexist for opposing her. The GOP may choose to save its ammo for a later fight when Obama nominates John Paul Stevens’ successor. Also, the hearings will probably take place over the summer when fewer Americans are paying attention to politics. So there’s less to be gained by grandstanding by either side.
At the end of the day, I believe that unless a Presidential nominee proves to be seriously flawed in qualifications or character, we should defer to the President’s preferences, whether that President is a Republican or a Democrat. (I have not forgotten the political assassination of Judge Robert Bork, one of the most qualified individuals ever nominated to the Court, by Democrats on purely ideological grounds.) The question is whether Sotomayor’s confirmation hearings will magnify today’s concerns to prove to be such flaws, or not. Like political junkies everywhere, I will eagerly await the answer.
But the outcome of this should be important to all Americans. Not because Sotomayor is female (not the first or even second woman on the Court) or Hispanic (a first, but there’s always going to be another first – first Albanian-American, first disabled person, etc. – when does it stop being the primary method of viewing people?), but because the nine members of the Supreme Court are among the most powerful people on earth – as powerful as the President in their collective ability to make decisions that affect the lives of ordinary Americans – think Dred Scott, Brown v. Board of Education, and Roe v. Wade, just for starters. What that means is that we should all hope for a nominee who takes the responsibility of being a Supreme Court Justice with the greatest of seriousness, and who will use her or his legal experience and understanding of the Constitution to make decisions based on the body of American law, not to advance a particular political agenda, but rather to hold any and all political agendas subject to the same scrutiny and standards. Liberals dissatisfied with the Court up until now have felt that the majority of the Justices have not done so; if that is the case (and I don’t agree that it is), replacing a partisan activist Court with another one swinging in the opposite direction is not a victory for the rule of law, only an Orwellian swap between the oppressors and the oppressed (Read 1984!)