Sonia Sotomayor: Two out of Three?

There are basically three things a President looks for in a Supreme Court Nominee. First, he wants someone who shares his approach to constitutional questions. What is Obama's approach? This, he said, was his second criteria for making his selection:

a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

Now the trouble with that is that either Obama is closet conservative or he is lying. I am guessing the latter, as his previously stated desire for a judge with "empathy" is at odds with the idea of "impartial justice." You simply can't be empathetic and impartial at the same time. Besides, if Obama really did believe in the above things, he wouldn't have nominated Sotomayor. For we know what she thinks the role of a justice is, from YouTube:

Um, all of the legal defense funds out there, um, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. Um, um — [laughter] — I know. I'm not promoting it, I'm not advocating it, and, I'm … you know. [laughter]

Hat tip to Hot Air. Sotomayor is both admitting, in a nod, nod, wink, wink, so or way what everyone knows: that Judges do make policy and law, and that the left thinks that's precisely what they ought to do. President Obama now understands that he has to say exactly the opposite of what he thinks and intends, and that the major press won''t cause him any troubles about it. The Sotomayor nomination tells us more about Obama than about the nominee: that his judicial views are on the radical end of the spectrum.

The second thing a President wants is a nominee who will win political points. Think Bush 41 and Clarence Thomas. Sotomayor may help the President with Hispanics (as if he needs help), but more importantly it shores up with support on the left. Sotomayor's identity politics, as in:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life.

This will be music to the ears of folks who are appalled at Obama's Bush 3 antiterrorism policies. To reach the best conclusions, you have to be the right kind of person: female, Latina, born in the Bronx, etc. One can only wonder what would have been the fate of a nominee who was on record as saying that White men who belong to the Little Rock Country Club are more trustworthy.

The last thing a President might look for is a Judge who is effective on the Court. This consists first of all in a sharp legal mind, and second, and perhaps more importantly, in the ability to persuade her fellow judges.

The trouble is that it's hard to find one candidate who is really in the top 1% in all three categories. President Obama clearly made the job harder by limiting his search to female judges. That summarily excludes half (or more than half, given the history of gender distribution) of otherwise qualified nominees. Putting a lot of number two emphasis on a compelling story makes the job even harder. What are the odds that the person with the best qualifications and intellect, combined with the greatest powers of consensus building, will also be the person with the most compelling personal story? Only in the movies.

By all accounts, Sotomayor is qualified for the job. No evidence has surfaced so far that she is at or even near the top in legal thinking and writing, or in the ability to persuade her brethren on the Court. She is almost assured of confirmation. Republicans can't mount a filibuster, and they shouldn't. That device, when it is available, should be reserved for the direst emergencies. Otherwise, the judicial nomination process breaks down. Republicans who object to her judicial thinking should vote no. That's enough.

Comments

[Miranda]

Dr. Blanchard:

Looking back at the history of the filibuster, it would be hard to argue that it has only been used in cases of emergency. The most recent use of the technique that I can recall, was the democrats' filibuster of President Bush's judicial nominees.

If the Democrats were not allowed to use such methods, or if they simply chose not to, I might agree with your statement. But Republicans play nice too often and we can't afford to. If Democrats can use such methods any time they please, while Republicans, out of civility, refuse to, there will be no real opposition, which means no political balance. That can be dangerous, especially if you're right that Obama leans toward the radical end of the left (at least on judicial issues).

[P. Chirry]

And don't forget Bork.

[KB]

Miranda:

The Democrats did briefly filibuster the Alito and Roberts nominations. The Republicans came very close to deploying the "nuclear option," i.e., restricting the filibuster in the case of judicial nominations. The crisis was averted by John McCain and his "Gang of Fourteen." I thought at the time that McCain had outmaneuvered the Democrats, and it turns out I was right. We got two very strong conservative justices on the Court. Had the Republicans gone nuclear, they would be in an even weaker position now than they are.

I am all for hardball when it has some chance of success. Right now the Republicans have almost no chance of mounting a filibuster. Also, hard as it may be, one has to think of the good of the Republic. If each side filibusters any nominee who holds objectionable positions on constitutional questions, then the nomination process grinds to a halt. No one could win nomination except those about whom nothing is known. The filibuster is appropriate only in the most extreme cases. The fact that the Democrats have abused it doesn't mean the Republicans should imitate them. In less than extreme case, hard as it may be, the President probably ought to get the appointments he wants.

What the Republicans should do now is be very, very polite, but force Justice Sotomayor to spell out her positions on all the controversial questions. Right now, neither abortion nor affirmative action are popular. Then let every Republican Senator decide for himself or herself how to vote. It is not an ideal situation, but that is the consequences of losing elections.

P. Chirry: I haven't forgotten Bork. What was done to him was unconscionable. But it wasn't a filibuster. He got his vote and lost it. That was a result of unbridled dishonesty on the part of the Left, and incompetence and lack of courage on the part of the White House.

[Miranda]

I agree that if a filibuster has no chance of success, then civility is generally a better option. I also agree that Republicans ought not to do everything Democrats do. But I wonder what constitutes an emergency. For Strom Thurmond in 1957, it was civil rights legislation. Surely, if fighting against rights for minorities is emergency enough for a filibuster, fighting for the right to life should be.

Those of us who are pro-life know very well what a radical leftist on the court will do to that fight. We aren't the only ones who have to worry. One has only to look at the court's decision on Eminent Domain to understand what a leftist court thinks about liberty.