The politics of the Sotomayor nomination

It is very likely that Sonia Sotomayor will be easily confirmed to the Court. The Democrats have the votes and, even without Al Franken, there aren't going to be enough Republicans to filibuster the nomination. And, given all the Republican protests against Democratic filibusters, it would not be right to turn around and try tit for tat. Especially when it would be futile. This isn't Animal House and the time for a "really futile and stupid gesture."

However, the Republicans still have an important role to use these confirmation hearings to air the judge's views particularly on subjects where her and Obama's views are really not in accord with the majority view of Americans. The conservative position on issues like affirmative action such as in the firefighters case before the Court now or eminent domain. So it is perfectly fair, and even the responsibility of the Judiciary Committee to question her on these views.

Richard Epstein of the University of Chicago has a dismaying post about a position that Sotomayor took in a takings case.

Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.

As James Taranto reminds us, liberals who care so much about empathy in judicial decisions seemed to forget all about empathy when it came to taking away Suzette Kelo's home and handing it over to Pfizer.

And Judge Sotomayor's conduct in the Ricci v. DeStefano case will be fair game, particularly in light of the upcoming Supreme Court decision that may very well overrule her original summary ruling. Although that won't be enough to keep her off the bench, particularly if several of the liberal justices rule against Ricci and the other firefighters who were denied a promotion, despite passing the qualifying test presumably because New Haven didn't want to promote only whites and one Hispanic. Sotomayor will be able to argue that her opinion was in accord with justices like the usual suspects who will probably rule in favor of New Haven's action. What do you bet that Souter, the justice she will replace, will rule that way?

However, when Americans hear about her ruling in that decision and the details of the case, most will not agree with her ruling. Reverse discrimination is not a popular position with most Americans - notice how Michigan voted overwhelmingly in favor of the Michigan Civil Rights Initiative after the 2003 Michigan law school decision upholding the use of diversity as a fundamental interest of schools in deciding admissions. Put together her decision against Ricci with her statement that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life" and you have someone whose approach to the law is not where the majority of Americans are.

Of course, the majority of Americans won't pay attention or care about the particulars of these issues. But it is still worthwhile for Republicans to add to the debate. This can be done in a sober and respectful manner without demonizing Judge Sotomayor. Republicans aren't going to block her nomination or convince liberals that she isn't a good choice. But they can make their case on such issues as affirmative action, eminent domain, and judicial activism to independent voters. And I, for one, would be happy to see a debate over a judicial nomination that didn't revolve mostly around aborition. There are plenty of other issues out there where a liberal justice's rulings would raise doubts among many voters. It will be to the Republicans' benefit to make their case. I bet that more Americans would agree with Ilya Somin's formulation about judges and bias.

Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging."

And they don't need to fear opposing a woman of Puerto Rican descent. The Democrats can spare us their sanctimony about how wonderful it is to have a Hispanic nominee. They weren't so concerned about a prominent Hispanic nominee when they blocked Miguel Estrada's nomination. The Anchoress links us to this reminder of how liberal interest groups wrote memos to Senators Kennedy and Durbin saying that they wanted to block Estrada since he would be a strong potential Supreme Court nominee for President Bush.

And I don't want to hear all this fluff about what a wonderful background and inspiring story she has. That's all very nice, but having an inspiring story didn't seem to mean anything when Clarence Thomas was the one with the story. Somehow these identity politics and personal biography points only are a big deal when we're talking about liberals. As the Anchoress writes.

Moreover I find the posy-bearing "compelling life story" idea to be gag-inducing. Aside from making news reporters sound like they're narrating programming for the LifeStyle network ("...in a moment, a very special story...") it seems manipulative and dishonest, to me. Good heavens, if anyone on the Supreme Court has a "compelling life story" it is Clarence Thomas, but the press didn't feel the need to gush over his rise from dirt-poverty. And if a "compelling life story" is all it takes to be a Justice, then let's just haul Susan Boyle over here and be done with it!

With Sotomayor's nomination we'll see both race and gender card be played. If you don't like her, you're a racist misogynist.

If seated, Sonya Sotomayor will be the 6th Catholic on the Supreme Court, but it is very doubtful that you will see the press or Democrats wring their hands about "imbalance" or "too many Catholics" should she be seated. In the upside-down world of misnamed liberalism, "bad" Catholics like Scalia, Alito, Roberts and Thomas are harmful to the world and little children, while Catholics in the mold of John Kerry and Nancy Pelosi are "the good ones." And if that reminds you of Archie Bunker suggesting that the black guy at work was "you know, one of the good ones," well, there you go. The liberalism of my youth has morphed into all that it hated.

There was one reason why I had rather doubted that Obama would pick Sotomayor. Sure there were all the political pluses of naming the first female Hispanic (or Latina, which now seems to be the favored term) to the Court. However, she is, reportedly, a rather abrasive personality who may be "frighteningly smart" or "not quite as smart as she thinks she is" according to anonymous lawyers' comments in the Almanac of the Federal Judiciary. Take all that with a large grain of salt. However, I would think that what the liberals want is someone with great intellectual heft who can not only express their viewpoint but has the potential to sway other justices to hers. Reportedly, Justice Roberts has that skill. And on a narrowly divided court, where Justice Kennedy sways back and forth like he's listening to calypso music, if I were a liberal, I would want someone who could have the intellectual firepower to play judicial Red Rover with Anthony Kennedy to pull him over to their side. If we can believe the anonymous clerks talking to Jeffrey Rosen, she doesn't sound like she fits that description while some of the other nominees being discussed sounded more able to do that. In fact, in that one sense, conservatives might be better off with her than someone else. Or perhaps not and we should stop making judgments on her personality based on anonymous quotes given to the Almanac and Jeffrey Rosen. Of course, when even Jonathan Turley is criticizing her written opinions for their lack of intellectual depth, there may be more support for the opinions that Rosen and Turley put forth that, while she may be great as symbolic choice, she won't be the liberal counterpoint to Roberts, much less Scalia.

So my advice to the Republicans: play it straight. Don't demagogue her. Question her on her controversial opinions and make sure that they get a full airing. Then vote your consciences. Some Republicans will vote for her because they sincerely believe that senators shouldn't reject a competent nominee whether President Bush or President Obama makes the nomination. Others will find her opinions on such issues to be enough to vote her down. Ignore all the interest groups who have a vested interest in making this as heated as possible. After all, who would donate to them if they didn't raise a major fuss. But I didn't like it when they did that for Bush's nominees and I don't like it now. We can at least be consistent in how we behave. And look to this as an opportunity to have a full debate about judicial philosophy. When expressed well, the conservatives have a winning hand to play. I've seen it time and time again in my own classes. When kids are presented with the descriptions of originalism and the living Constitution arguments, they are evenly divided. Then I show them a telecast of a discussion between Justices Scalia and Breyer on judicial philosophy and quite a few kids change their mind after they hear the arguments put forth by the two justices. This is a debate worth having and a nomination hearing is a good place to have it.