Obama's Supreme Court

Tuesday, 26th May 2009

I have no idea whether Sonia Sotomayor is qualified to sit on the United States Supreme Court. But, unlike Harriet Miers, she's not obviously unqualified. Having been appointed to the bench by George HW Bush is no bad thing; having been recommended by Daniel Patrick Moynihan a considerable advantage. Presuming that no scandalous relevation from her past bubbles up into the public domain one imagines she will be confirmed. This appointment, though it won't shift the balance of the court too much, poses a couple of awkward problems for the Republican party. Since I doubt they can prevent her being confirmed, one wonders whether there's any significant upside in fighting the nomination with as much vim and anger as many interest groups on the right are likely to demand?

Identity politics* and treating entire swathes of the population as client groups is not an especially bonny aspect of American politics. But it is what it is. While it's not obviously the case that just putting the first** hispanic justice on the bench necessarily advances or even much solidifies Democratic support amongst latino voters, one can easily imagine a situation in which a raucous, energetic, strident Republican attempt to derail the nomination could further alienate hispanic voters from the GOP. That might be unfair, but I wager it's how it would be perceived by latino voters. So this would seem, at first blush, to be the trap Obama has set for the Republicans: accept the nomination (assuming there's no scandal) and like it or fight it and lose and do more damage to your own interests than you would if you'd simply seethed in silence and accepted your inevitable defeat. It's one they do not need to fall into...

*On the other hand, it's noticeable that the charge of favouring "diversity" over "quality" always arises when the nominee is not a white man. Are there really no qualified women/blacks/hispanics/asians in the United States? Apparently! Or rather, maybe there are but they never get picked either!

**Sort of!

UPDATE: Tom Goldstein has a good analysis of the battle ahead.

Filed under: GOP (332 more articles) , Obama (365 more articles) , Supreme Court (11 more articles)

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Conservative Cabbie

May 26th, 2009 4:32pm Report this comment

Alex

I hope you don't mind the shameless plug but I wrote a post on why I dont think the GOP should challenge the Sotomayor nomination.

http://www.conservativecabbie.com/?p=313

I agree with you that this is a trap which the GOP should not fall for. Her appointment doesn't change the partisan makeup of the court and she was nominated previously by George HW Bush and has been confirmed by the senate twice previously. It would be a hard case to make challenging her now.

As for her competence, Volokh has done an analysis of her judicial record and finds her to be average at best.

http://lists.powerblogs.com/pipermail/volokh/2009-May/017020.html

ndm

May 26th, 2009 7:25pm Report this comment

If we're really getting into the nitty-gritty of the pick then it is worth remembering that her background is from Puerto Rico not Mexico. So I don't know how much the choice actually benefits Democrats among Latino immigrant groups. As Josh Marshall points out at least the first Latin/a justice will not be Alberto Gonzales.

All that being said, Sotomayor looks like a great choice to me. There are too many Republican picks on the court who waste their supposed brilliance on shoe-horning obviously political decisions into phony legal theories like "orginalism."

Amanda H.

May 26th, 2009 10:35pm Report this comment

Re: identity politics always showing up for those who aren't white men

What's Clarence Thomas, chopped liver? (he was accused of being a race-traitor due to being a qualified black conservative, though...)

The fact that this judge thinks the court of appeals is the right place to make policy is...well, terrifying for someone who's supposed to be protecting the US Constitution.

Campbell

May 27th, 2009 11:19am Report this comment

ndm: Obama's approval ratings amongst Latino voters are currently reported at around 85%.
How did the Republicans let that happen?

Amanda H: a serious request. I have never quite understood the sensitivity about the Supreme Court 'making law'. It is one of the three corner-stones of the Constitution with the duty, when requested, to examine and rule on the interpretation and constitutionality (?!) of the law. In a Common Law system it is, surely, inevitable that the Court will 'make law'; the English courts do it on a daily basis. So what is the problem?

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