By E.J. Dionne Jr.
Thursday, May 28, 2009
Republicans would be foolish to fight the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court because she is the most conservative choice that President Obama could have made.
And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left. Indeed, on many issues of concern to business, she is likely to make the Chamber of Commerce perfectly happy.
In this battle, it's important to separate Obama's reasons for choosing Sotomayor from her actual record. He was drawn to her not simply because the politics of naming the first Latina justice were irresistible, but also because he saw her as the precise opposite of Chief Justice John Roberts.
In his September 2005 speech explaining his vote against Roberts, Obama argued that 95 percent of court cases are easily settled on the basis of the law and precedent. But in "those 5 percent of hard cases," Obama said, the "legal process alone will not lead you to a rule of decision" and "the critical ingredient is supplied by what is in the judge's heart."
And that is where Obama found Roberts wanting. The young senator insisted that Roberts "far more often used his formidable skills on behalf of the strong in opposition to the weak" and "seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process."
Obama believes Roberts's subsequent behavior on the court has justified his initial suspicions. He hopes that Sotomayor will be the anti-Roberts, a person whose experience growing up in the projects of the South Bronx will allow her to see life and the quest for justice in a way Roberts never will.
Conservatives -- particularly those who run direct-mail outfits and want a big court fight -- would love the decision over Sotomayor to hang on Obama's call for judges who show "empathy." They would cast her as a dangerous activist willing to bend the law to produce the results she wants.
They want to turn Obama's argument on its head and claim that Sotomayor would show bias in favor of those who share her background -- and never mind that they dismiss such assertions when they are raised with respect to white, conservative, male nominees.
The problem is that this approach is untrue to who Sotomayor has been and has little relationship to the decisions she has actually rendered as a judge. News accounts from the 1990s consistently described her as a "centrist" in her politics. Her lead sponsor when she was first named as a judge, the late Sen. Daniel Patrick Moynihan, was hardly a conventional liberal. Obama may have found himself an empathetic judge, but she practices her empathy from the middle of the road.
A careful analysis of her record by Business Week, for example, concluded that she is a "moderate on business issues" and would fit the court's current alignment on such questions.
She also upheld a ban on federal funds going to family planning groups that provided abortions overseas. Sotomayor wrote that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
Dan Gilgoff, on his excellent "God and Country" blog, points out that Sotomayor also ruled in favor of a group of Connecticut antiabortion protesters who asserted that police "used excessive force against them at a demonstration." He concludes that her "thin record on abortion is most likely a relief" to pro-life groups. In picking her, Obama sent another signal that he is serious about seeking common ground on abortion.
Liberals should not take the bait of the right-wingers by allowing the debate over Sotomayor to be premised on the idea that she is a bold ideological choice. She's not. But if conservatives succeed in painting this moderate as a radical, they will skew future arguments over the court. In fact, liberals should press Sotomayor on her more conservative decisions on business issues, an area in which the current court already tilts too far right.
As for Republican senators, they have to ask if it's worth alienating Latino voters to wage a fierce battle against a woman who is, from their point of view, the best nominee Obama was likely to give them.