27 May 2009


Recently, President Obama nominated Judge Sonia Sotomayor to replace Justice Souter on the Supreme Court. I'm not over the moon about his choice. Her Wikipedia page has all the relevant bio information if you're curious (and amusingly, was updated within a minute of the announcement of her nomination), and she seems highly qualified. But the NYT has a great article about how the scope of her decisions has been extremely limited (if meticulous) and her most controversial case is bizarre and has little supplied reasoning to reveal her thoughts:
[Sotomayor's decisions] reveal no larger vision, seldom appeal to history and consistently avoid quotable language. Judge Sotomayor’s decisions are, instead, almost always technical, incremental and exhaustive, considering all of the relevant precedents and supporting even completely uncontroversial propositions with elaborate footnotes.

All of which makes her remarkably cursory treatment last year of an employment discrimination case brought by firefighters in New Haven so baffling. The unsigned decision by Judge Sotomayor and two other judges, which affirmed the dismissal of the claims from 18 white firefighters, one of them Hispanic, contained a single paragraph of reasoning.
This is troubling, to say the least, when added on to the fact that she otherwise has relatively few pivotal-issue cases. To me, the situation looks remarkably like the nomination of Souter (whom Sotomayor is replacing): President George H.W. Bush had just lost with Bork and wanted to avoid a fight, so they appointed someone with relatively little controversy behind him but who seemed generally conservative. To their surprise, Souter ended up in the liberal set more often than not, and never overturned all the liberal precedents on abortion and civil rights like they hoped.

Ideally, we'd get a real liberal constitutionalist in Sotomayor, but who the hell can tell at this point? The Times magazine has a great analysis of what a liberal justice might be in the modern era, and points out that we're not going to see another Burger coming from Obama, after all. But at least conservative Volokh isn't happy; when it comes to questions like this, that's a good sign.

In the end, it doesn't really matter. The Dems are certainly all going to vote to confirm, and the Republicans won't be able to sustain a filibuster; their hispanic Senator Martinez from Florida is probably not going to be able to take the heat from a filibuster against the first hispanic nominee in history, and that one seat would do it. Politico points out some potential tactics, but it's a sealed deal.

Wonkette had a great brief piece about liveblogging the nomination that you should read:
10:32 AM — “An ordinary person who has been blessed with extraordinary opportunities and experiences.” Translation: a radical leftist lesbian radical who will take away your guns, force your children into kindergarten abortion parties, exhume the corpse of Ronald Reagan for the purposes of urinating on it, and surrender in Iraq.

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