Thursday, May 28, 2009

Sonia Sotomayor will be confirmed handily -- but only after a nasty, if pointless, battle

Sonia from The Bronx with Barack from the South Side

Politics is all about numbers -- of votes. Barack Obama is a liberal Democrat from the South Side of Chicago. He won the election and has now nominated Sonia Sotomayor, a liberal Democrat out of The Bronx, to the Supreme Court. That's how politics works. Yet, many appear to be surprised or offended -- or pretend to be surprised or offended -- that Obama's Court pick is a liberal Democrat, rather than some sort of post-partisan, non-ideological, objective and dispassionate legal and judicial oracle who will apply and interpret the law without regard to Obama, Democrats, liberalism, The Bronx, Cardinal Spellman High School, other Puerto Ricans, women or her Mom.

Sorry, but the truth is that judges are politicians in robes. We Americans used to be more conscious and accepting of this obvious fact. When we were, ironically, appointees from the ex-Republican Governor, Earl Warren, to the distinguished Democratic law professor, Byron White, were more readily accepted and often turned out to be more independent and unpredictable.

Not surprisingly, Obama decided that he would get the most political gain for himself and his party by appointing a second woman and the first Hispanic to the Court. Sotomayor fit the bill. She also had the added advantages of a compelling personal story and long service in the federal courts. The latter gives her a paper trail of decisions and opinions that can be gone over with a fine-tooth comb by political allies and adversaries, alike, without setting off any popular explosions, giving Republicans a lot of ammunition to use against her, or gravely disappointing any major constituent group within his own party. In any case, few politicians will want to take it upon themselves to try to block the nation's first Hispanic Supreme Court Justice.

Let's be clear about this. Since this is politics, recognizing a major ethnic, racial, religious, political, sectional or other bloc on the Court is an exalted tradition, not a PC departure. For more than 200 years, Presidents have sought to "balance" the Court regionally and politically, and beginning with President Wilson's appointment of Justice Louis Brandeis in 1916, ethnicity played a role as well.

By all accounts, Sotomayor is a smart, experienced, diligent and reasonable judge. And while clearly a liberal, she's no fire-breathing ideologue, which has some on the left nervous about her. Barring some astounding skeletons in her closet that White House vetters missed, with Democrats holding 59 seats in the Senate, she is going to be confirmed. No Democrat will vote against her, and at the very least, several Republicans will vote for her. The odds of a filibuster are zero.

On the other hand, conservative forces outside the Senate appear to be intent on waging a rough battle against her. While they have little ammunition at this point (her impolitic comment that Latina women judges make better decisions than white male judges is the best they have so far), a full court press against her is already under way among some conservative bloggers (see here, here, here and here) and on-air personalities like Rush Limbaugh and Sean Hannity.

To be sure, even conservatives who want a fight concede that they have no chance of defeating the nomination but want to use the confirmation process to lay down markers for the next Court pick. Be that as it may, revving up the GOP conservative base about Sotomayor will make it harder for some "red state" Republicans to avoid grandstanding against the nomination and voting not to confirm. It's hard to see, though, how more than about 15 GOP Senators would wind up voting, no, especially given concerns about alienating Hispanic voters for the future.

Like other confirmation battles in the past, this one will get nasty -- but unlike many, the outcome is a sure thing.

What do you think? Post a comment.


  1. The thing that disturbs me about Sotomayor is that she has stated that it is the role of federal judges to make policy. That is simply unconstitutional. It is the role of the judiciary to interpret the laws that were written by the people through their democratically elected representatives.

    It is true that some past Dem nominees (like the brilliant and revered Byron White) have not been activists. But so what? This is not about her being liberal; it is about her knowingly rejecting the constitutional bounds of her role and instead usurping the power of the people as expressed through their democratically elected representatives. Check out her remarks at a law forum at Duke Law School in 2005 for one example of her open acknowledgement of this; look to her articles and judicial opinions for that attitude in practice.

    That anyone is comfortable with the "reality" that judges are just politicians in robes frightens me greatly. Whatever the political persuasion of the judge, legislating from the bench is one of the most serious threats to our democracy. Ask yourself: how would you feel about a judge declaring abortion to be banned by the Constitution (not just finding it to be unprotected) and striking down any state law accomodating an abortion right?

  2. Too bad Sotomayer doesn't have a handicap.
    A woman, a Hispanic and a handicap...Obama could've hit the trifecta.
    Obama-lama-ding-dong could've done better.

  3. Alexandra,

    It's not a matter of being "comfortable" with the "reality" that judges are by and large politicians in robes. Federal judges in out constitutional system are nominated by the President and confirmed (or not) by the Senate. My humble opinion is that with a Democratic President and a substantial Democratic majority in the Senate, Obama's choice will be confirmed, however much Obama's political opponents don't like it. Elections have consequences, and the Democrats won the last won -- big time.

    As for the "wise old men" of the SCOTUS and politics, the Court has upheld and struck down Jim Crow laws at different times in response to changing public and political moods -- and that's but one of the myriad examples of the Court overruling itself over time. While I don't expect a ban on abortion anytime soon, if public sentiment were to turn sharply in that direction in the coming 10 or 20 or 30 years, it should not come as a surprise to anyone that the Court would eventually catch up with the political winds.

    To sum up, to get the Court you want, you have to win elections. I think that's actually pretty democratic.

  4. The fact that a democratically elected President selects a judge does not mean that it is "pretty democratic" for that judge to then decide cases on the basis of his or her own personal political opinion, or upon any basis other than the Constitution itself.

    Courts are not supposed to "catch up with the political winds." Legislatures are. There is a reason judges are not elected. It is to prevent them from being influenced by pleasing the people as opposed to simply interpretting and applying the Constitution. That is part of our system of checks and balances. When the Court members begin acting like politicians in robes, the fact that they are unaccountable to the people becomes a very big problem.

    As for my point about abortion, I am afriad you missed it. We happen to know exactly what the Court would do were the people of this country to be opposed to abortion since that is the fact situation but exactly at the time Roe was decided. The Court struck down the laws of all 50 states (maybe Hawaii allowed abortion . . . perhaps it was just of 48 but in any case) and decreed abortion to be a fundamental Constitutional right.

    It is hard for liberals to see what is wrong with this because they believe in abortion rights, but what would happen if the Court suddenly struck down all the laws of the states allowing abortion? What if the Court said that abortions were banned by the Constitution? The states would have no recourse. Even though the majority of the people wanted to allow women to have access to abortion, as few as 5 people onthe Court could decree otherwise, and no one could do a thing about it but wait until they died or stepped down. Do you see the problem now? In a democracy, the people shouldbe able to decide such things, not 5 people in robes with a political agenda. The Court is there to protect the minority opinion, to promote the democratic process, all using the COnstitution as its sole guide and reference.

    As Abraham Lincoln put it, "the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."