President Obama has chosen Sonia Sotomayor as the replacement for outgoing Supreme Court Justice David Souter. Even before the pick, it was clear that identity politics would be a huge factor in the decision:
“There is only one thing that is essential for this pick, probably: that she be a woman,” said Thomas Goldstein, a leading appellate attorney and founder of scotusblog.com. “Beyond that, having the candidate be Hispanic would certainly be a plus, because it would add still more to the diversity of the Supreme Court…
Of its 110 justices over the past 220 years, all but four have been white males. The exceptions are two African-Americans (Thurgood Marshall and Clarence Thomas) and two women (Sandra Day O’Connor and Ginsburg).
Because of the fact that Justices of the Supreme Court are appointed for life, personnel change comes to that august body at a glacial pace. There’s no question that women are underrepresented on the Court compared to their present numbers in the legal and judicial ranks, and I have absolutely nothing against Obama’s appointment of a woman, or a Hispanic, or (as in the case of appointee Sotomayor) a Hispanic woman.
I do have trouble with identity politics as a whole, and with the idea that a person’s ethnic/racial background determines how he or she will decide a Supreme Court case. It shouldn’t (and, in Clarence Thomas’s case, it doesn’t—to the rage of the Left). Of course, Sotomayor was chosen by Obama not as a random judge who is both female and Hispanic, but as one who also appears to come with the proper intellectual credentials and, even more importantly, the requisite liberal philosophy.
Is she the very best judge Obama could have chosen, given that he was undoubtedly going to choose only among those of the liberal persuasion? I have no idea. Perhaps she is, perhaps not; I’d have to have read a great many of her legal opinions, as well as the legal opinions of the others who were considered her rivals for the job, before I’d have a realistic appraisal of that.
And what about her remark a while back that “the court of appeals is where policy is made” (see clip here)? She makes an unconvincing little disclaimer after she says that by jokingly adding “I know this is on tape and I should never say that…I’m not promoting it and I’m not advocating it…”, but the rest of the tape makes it clear that she believes the law is something that “develops,” and that appeals court justices help that “development” along.
Is it surprising that these would be the views held by whomever Obama would be tapping for the Supreme Court openings he was slated to fill? Was there ever a single doubt that he would nominate a liberal activist judge?
No. The only mysteries were the exact identity of the person (or persons) he would name, how far they would be willing to go to “develop” the law in the liberal direction, how brilliant or mediocre their legal reasoning would be in doing so, what cases would come up during their tenure to determine the specifics of how the law would change, and whether the majority of the other Justices would come along for the ride. We now know the answer to the first question; the other answers will take some time to unfold.
So Sotomayer’s liberalism is no surprise, nor is her gender nor her ethnic origins. And, as Robert Barnes points out in today’s WaPo, although diversity could have been furthered on the Court by appointing someone who had graduated from a public university (a mindboggling eight of the present group attended either Harvard or Yale), or someone who didn’t come from an appellate court background (all the present Justices have that history, the first time this has ever been the case), that type of diversity is not considered important. Appealing to women and Hispanics most definitely is.
Obama didn’t need to be careful to choose someone who would appeal to Republicans as well, so that they wouldn’t block the nomination. That’s the advantage of controlling the legislature with what is essentially a filibuster-proof majority. It was also part of what I was so concerned about during the 2008 campaign. Back in early October I wrote the following:
That brings to mind the sort of thing I’m most concerned about this election—what Democrats (or any one party) can do with power. It’s not so much the possibility of an Obama Presidency—although that would be bad enough—but the possibility of an Obama Presidency plus a Congress so strongly Democratic that it might even be filibuster-proof. That combination could do very serious damage indeed. It’s also likely that several Supreme Court Justices will be appointed by the next President, which in the case of Obama would skew the makeup of the Court towards liberal activism for decades to come.
This is the prospect we face: all three branches dominated by the liberal side of the political coin, with no checks on their power but the ability of the people to vote them out next time in two of the branches.
Back then, that was the prospect we faced. Now, that’s the reality we face.
[ADDENDUM: Here's an interesting take on whether Benjamin Cardozo could rightly have been called the first Hispanic Justice. My answer? No. As writer Ilya Somin indicates, "Hispanic" (and many other ethnicities) is a social construct that is somewhat arbitrary. Sotomayor fits the bill; Cardozo---a nonpracticing Jew whose ancestors had emigrated from Portugal long ago---did not.
This is interesting as well:
Democratic Cardozo's appointment by a Republican president [Hoover] has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee’s contribution to law.
Even back then, going beyond politics to pure meritocracy was considered highly unusual.]
[ADDENDUM II: Stuart Taylor has some fascinating things to say about Sotomayor's views on judicial diversity and on how ethnic and gender identify inform legal decisions.]