Pres. Obama has chosen judge Sonia Sotomayor to fill the seat to be vacated by Justice David Souter, when he retires from the Supreme Court. Sotomayor is an accomplished jurist born to Puerto Rican parents and raised in Bronx housing projects, who has reached the pinnacle of achievement at each phase of her career. Her placement as the Court’s 111th justice would be the first for Hispanic Americans and would secure a second current seat for women.
Raised by a single mother, after her father died when she was only 9, Sotomayor won entry to Princeton University where she graduated Summa Cum Laude, and at Yale Law School, became editor of the Yale Law Journal. Pres. Obama was editor of the Harvard Law Review, and had been raised by a mother who was more a mainstay in his life than any father figure.
The speculation could be made there is a kinship there, not only in their high level of scholarship, but also in their overcoming the difficulties of a single-parent home. But Obama has been clear throughout that he feels justices should be moderate, motivated by a devotion to the law and able to see the human effect of the law and of judicial rulings. In 1991, she was named to the federal bench by the first Pres. Bush, at the suggestion of Sen. Daniel Patrick Moynihan; her confirmation came a year later.
She was named by Pres. Clinton to the appeals court, and was again confirmed after one year. This confirmation process promises to be a whirlwind and a media frenzy by comparison. Some conservative Republicans have vowed to oppose her nomination, but there is not unanimity among Senate Republicans, who hold only 40 seats and may not be able to stage a filibuster. Some leaders have said barring a major negative revelation, they will not be able to block her nomination.
Sen. Jon Kyl (R-AZ) has said the Republican party will mount a stiff opposition to any justice seen to show the quality of “empathy”, which Pres. Obama has remarked is a vital aspect of what he views as great Supreme Court justices. Kyl says empathy is an emotion and not a judicial qualification, an apparent opposition on his part to rulings that favor the downtrodden or the victim; Obama, on the other hand, has said a justice must be able to “put himself in someone else’s shoes” in order to understand the ramifications of a legal judgment.
Contrary to the presumption that the Court has always been largely uniform in its make-up or that choices have always been made on resume alone, the Supreme Court has from its inception been treated by presidents and members of Congress as a representative body. Originally, there were “regional seats”: a New England seat, a southern seat, etc. Certain states, like Virginia, were initially thought to have a right to at least one seat.
That specific representative quality has evolved over time, but it is the Senatorial confirmation process that has tended to enforce the use of nominations to maintain a minimum level of regional or even ideological representation. Obama is a Constitutional scholar, and it is not lost on him the degree to which aiming for a diverse Court is part of the process of securing a fair-minded Court of Constitutional scholarship.
Though the specific qualities of any pick will allow for a heated political debate on a number of issues, Obama’s selection of Judge Sotomayor is not so bold a pick of an extreme liberal as to lead to a divisive confirmation process. Though she has spoken of the insight her heritage might bring to her application of judicial “wisdom”, she is generally seen as a principled jurist who makes her rulings on the merits of the law.
Some conservative groups, who have been mounting a sort of generic anti-liberal attack plan since Obama’s victory in November, in anticipation of a possible Court vacancy, have attacked Sotomayor as ideological and liberal. Wendy Long, of the conservative activist group Judicial Confirmation Network, has alleged “Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written”.
The accusation is a mischaracterization of Judge Sotomayor’s record, based on her statement that being a woman of Hispanic ethnicity in a country where both groups have been marginalized in the past gives her insight into the meaning of the rulings she makes. She has never stated an ideological agenda.
It should be noted that many such conservative groups refer to judges with “liberal” records as activists, but openly demand that all judges, conservative or otherwise, take a political position on abortion or other issues, and push those policy positions in their rulings. Such groups have successfully lobbied for avowedly ideological conservative justices in the past, including Justices Thomas, Alito, Roberts and Scalia, all of whom have delivered paid speeches to conservative-leaning audiences, with specific agendas.
Sotomayor’s appointment promises to put the White House at a stronger position regarding Senate negotiations, in part because the Republican party will be forced to oppose her as a woman and as a Hispanic justice. On both counts, Republican opposition will risk alienating two of the largest voting blocs in the country, both of which shifted away from the party dramatically in the 2008 elections.