Let's face it: it could have been a lot worse.
President Barack Obama's choice of Second Circuit Appeals Court Judge Sonia Sotomayor to fill the seat being vacated by retiring Supreme Court Justice David Souter won't change the ideological makeup of the High Court. Souter often sided with the liberal wing of the court, and despite her somewhat moderate record as an appeals court judge, Sotomayor will be expected to do the same.
Nevertheless, Obama's decision to nominate what he would call a "centrist" must be seen as an overture of good will toward Republicans. It also is important understand, however, that Obama may have made this particular pick in order to bank political capital for the next time a vacancy arises -- which it almost certainly will. Should that happen, there will undoubtedly be a more liberal candidate nominated.
Conservatives undoubtedly won't be happy with Sotomayor, but it is unlikely they would have been satisfied with any of the candidates on the president's short list of potential nominees. Obama never would have nominated a conservative candidate to fill the vacancy, so a relatively moderate candidate is better than a rabidly liberal one.
Obama was clearly committed to nominating a woman, but as much as conservatives would have preferred either of Fifth Circuit Appeals Court judges Edith H. Jones or Edith Brown Clement, most knew that it was not going to happen. In recent weeks, rumors had been swirling about the president's desire to nominate not only a woman, but an ethnic minority as well. This had some conservatives privately pulling for Ninth Circuit Appeals Court Judge Kim McLane Wardlaw, whose opinions have been surprisingly conservative despite her alliance with Democrats before she served in a judicial capacity. Wardlaw is the daughter of a Scottish-Irish father and a Mexican-American mother.
Although Democrats have been touting Sotomayor's all-American story -- she is the daughter of Puerto Rican immigrants -- Republicans have been quietly non-committal about the pick, opting to "reserve judgment" in the words of GOP Chairman Michael Steele. Undoubtedly, however, as the vetting process continues (it has been underway for quite some time), more Republicans will begin to express concern and perhaps even opposition to the nomination. Although Sotomayor was appointed to US District Court for New York's Southern District by President George H.W. Bush, 29 Republicans opposed her appointment by President Bill Clinton to the Second Circuit Court of Appeals.
Republicans need to be diligent in their investigation of Sotomayor's background. This may be difficult, because Hispanic groups undoubtedly will try to politicize as racist any opposition to her appointment. If only to preserve the authenticity of the confirmation process, Republicans should stay the course regardless of the pressure.
Initially, there are some causes for concern:
- Sotomayor's decisions have frequently been reversed when her cases have reached the Supreme Court, the incarnation of which has been relatively conservative in recent years.
- She has admitted -- on tape -- to supporting an activist judicial philosophy, saying "Court of Appeals is where policy is made."
- She has been accused of engaging in identity politics (which are almost always motivated by bias), saying "I ... accept that our experiences as women and people of color affect our decisions. 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."
- Some believe her identity as a Hispanic woman has clouded her vision on racially-charged issues. For example, in 2008, she dismissed -- with just a single paragraph -- a reverse discrimination lawsuit filed by 19 white firefighters (and one Hispanic one), who believed they had been unfairly overlooked for promotions simply because of the color of their skin. In a dissenting opinion, one of Sotomayor's fellow judges -- and a fellow Hispanic -- Judge Jose Carbanes, said Sotomayor's opinion ignored the facts of the case.
While conservatives would have preferred a more conservative candidate, Obama could have chosen a much more liberal one. While she is relatively inconsistent in applying judicial restraint, she has exercised it on more than one occasion, which is more than can be said of other candidates the president could have chosen. Republicans deliberating on Obama's choice must ask themselves whether the candidate they now know is better or worse than the possible candidates they don't know.
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