By Ruth Marcus
Wednesday, May 27, 2009
The job, in a sense, was Sonia Sotomayor's to lose -- even though she was the only one of the four candidates President Obama interviewed for the Supreme Court vacancy he didn't know beforehand.
Two -- Homeland Security Secretary Janet Napolitano and Solicitor General Elena Kagan -- serve in his administration; the fourth one -- U.S. Appeals Court Judge Diane Wood -- was a colleague on the law school faculty at the University of Chicago.
Each was tempting: Napolitano has the legislative background missing on the court since Sandra Day O'Connor's retirement; Kagan has the track record of bringing together liberals and conservatives at a place at least as fractious as the high court, Harvard Law School; Wood is an Obama favorite with a stellar judicial reputation.
And yet the arguments for picking Sotomayor were awfully strong. Her life story is compelling in a way that mirrors Obama's own amazing trajectory: the child of Puerto Ricans, rising from the public housing projects of the Bronx to the pinnacles of the legal profession, overcoming adversity (childhood diabetes, the early death of her father) along the way.
She brings an impressive breadth of credentials and experience, from the grittiness of the Manhattan district attorney's office to the rarefied precincts of intellectual property law to the nuts-and-bolts life of a trial court judge.
And the obvious attractions, both symbolic and practical, of having the first African American president name the first Hispanic to the high court were not lost on Obama. The Sotomayor choice, of course, satisfies an important Democratic Party constituency; if health care and climate change end up eclipsing immigration reform this year, a Hispanic justice can help reduce the grumbling.
Since Obama is likely to have more than one high court spot to fill, picking a Hispanic woman for the first vacancy gives him maximum flexibility for the future -- maybe even a white Anglo-Saxon Protestant, a somewhat endangered species among the justices.
By the time of Obama's interview, White House vetters had spoken with Sotomayor's Republican colleagues on the 2nd Circuit, who praised both her intellect and her collegiality; the vetters had read through oral argument transcripts and saw no evidence of the bullying alleged in some reports.
Indeed, Sotomayor's supposed assertiveness may have been a plus in Obama's eyes.
"The question for him was, 'Is this a person who's got the toughness, the intellectual capacity, to stand up to John Roberts?' " said one senior administration official. "He came out of his interview with her on Thursday and said that he had no concerns whatsoever about her intellectual ability to stand up to Roberts."
I'm skeptical of the initial critiques of Sotomayor -- with a few caveats. One involves the New Haven, Conn., firefighters case. I'm not so much concerned about Sotomayor's position as I am about the summary way the three-judge panel on which she sat handled the case, not even bothering to write an opinion despite the importance of the question involved.
I'd also like to hear more from Sotomayor herself about some out-of-court statements -- for instance, this from a 2001 speech: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." A bit of hyperbole in the service of diversity (my guess) or a disturbing bit of identity politics (as the National Journal's Stuart Taylor sees it).
Forgive me, though, if I detect a whiff of sexism in the bully-on-the-bench rap; somehow I doubt that a male judge would be so chided for being firm with litigants. Ditto, with a bit of racism thrown in, the barely sourced and inadequately supported suggestion of Sotomayor as an intellectual lightweight. I find it awfully hard to reconcile that with graduating summa cum laude from Princeton.
In any event, for all the disparaging of hearings as useless Kabuki, in my experience they've served remarkably well in elucidating, for better (David Souter, Roberts) or worse (Clarence Thomas), the nominee's intellectual capacity and temperament.
As to the portrayal of Sotomayor as a flaming liberal, I defer to the judgment of Tom Goldstein of the invaluable ScotusBlog: "There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left," he wrote. "Our surveys of her opinions put her in essentially the same ideological position as Justice Souter."
A "Newyorkrican" (her phrase) Souter with a taste for Nancy Drew. Sounds pretty good to me.