by Nick Stone of the Drawnlines Blog
There is little doubt that Sonia Sotomayor will be confirmed as the next Supreme Court justice of the United States. Few can argue that the Democrats will have the votes to confirm her nomination, as they have a ten seat Senate majority and will likely suffer no defections.
The obvious question is, “Is she the right candidate?” Everyone from Capitol Hill and politics around the nation has been chiming in, and in lieu of answering the question here, we’ve provided excerpts from two good dissenting opinions. Feel free to chime in below.
“Empathy” is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.
There is a certain irony in a president who routinely praises America’s commitment to “the rule of law” but who picks Supreme Court nominees for their readiness to discard the rule of law whenever emotion moves them.
Mr. Obama’s pick also allows him to placate Hispanic groups who’d complained of his failure to appoint more high profile Latinos to his administration. After the Democratic share of the Hispanic vote increased to 67% in 2008 from 53% in 2004, Latino groups felt they were due more cabinet and White House posts.
Mr. Obama also hopes to score political points as GOP senators oppose a Latina. Being able to jam opponents is a favorite Chicago political pastime. Besides, the president has been reluctant to make comprehensive immigration reform an issue, so a high-profile Latina appointment buys him time.
The Sotomayor nomination also provides Republicans with some advantages. They can stress their support for judges who strictly interpret the Constitution and apply the law as written. A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.
Conservatives — particularly those who run direct mail outfits and want a big court fight — would love the decision over Sotomayor to hang on Obama’s call for judges who show “empathy.” They would cast her as a dangerous activist willing to bend the law to produce the results she wants.
They want to turn Obama’s argument on its head and claim that Sotomayor would show bias in favor of those who share her background — and never mind that they dismiss such assertions when they are raised with respect to white, conservative, male nominees.
The problem is that this approach is untrue to who Sotomayor has been and has little relationship to the decisions she has actually rendered as a judge. News accounts from the 1990s consistently described her as a “centrist” in her politics. Her lead sponsor when she was first named as a judge, the late Sen. Daniel Patrick Moynihan, was hardly a conventional liberal. Obama may have found himself an empathetic judge, but she practices her empathy from the middle of the road.
A careful analysis of her record by Business Week, for example, concluded that she is a “moderate on business issues” and would fit the court’s current alignment of such questions.
She also upheld a ban on federal funds going to family planning groups that provided abortions overseas. Sotomayor wrote that “the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.”