Making History Was but One Factor
Obama Touts Nominee's Credentials, Story

By Scott Wilson
Washington Post Staff Writer
Thursday, May 28, 2009

LAS VEGAS, May 27 -- President Obama's selection of Judge Sonia Sotomayor to become the first Hispanic Supreme Court justice places him beside Woodrow Wilson, Lyndon Johnson and Ronald Reagan as presidents who broke demographic tradition with high court picks.

Obama, whose own election signaled an American first, is seeking to make history early in his presidency. Like those other presidents who swept aside ethnic, racial and gender barriers on the court, Obama invoked the need for real-world experience on the bench in choosing a former prosecutor who rose from public-housing poverty, and he continued to hit that theme during a two-day swing through the heavily Hispanic Southwest this week.

Obama held up Sotomayor's legal résumé and bootstraps narrative as a counterpoint to the "era of selfishness and greed" from which he told an audience Tuesday the country has just emerged but that has taken a toll. "Sonia Sotomayor's life," he said, "is proof that all things are possible."

"I think that America is a dynamic country that's evolving and changing all the time, from generation to generation," said David Axelrod, a senior adviser to Obama. "It's a healthy evolution, and I think we're pleased to be agent of that evolution. But that alone would not have been sufficient reason to pick this particular judge."

Just over four months into his presidency, the vacancy left by Justice David H. Souter's impending retirement offered Obama, a former law school lecturer, his first opportunity to influence the direction of the high court. Underscoring the confidence he has in his own popularity and communication skills, Obama decided on a highly experienced judge with a storybook biography who, nonetheless, was not the safest choice on his list.

Sotomayor's past remarks on the central role that the federal appeals court plays in policymaking and the influence that race and gender have on a judge's job have already been cited by the conservative groups gearing up to oppose her nomination.

But Obama expected the resistance, his advisers said, not only to Sotomayor but also to any of his final four candidates. Axelrod said that "this was not a judgment about who was easier to confirm and who was harder."

"As impressive and meaningful as Judge Sotomayor's sterling credentials in the law are, her extraordinary life journey is even more exceptional," Obama said in a fundraising speech at Caesars Palace.

Senior administration officials acknowledge that history loomed in the background of Obama's weeks-long selection process, which culminated with a choice that will leave his first mark on the court and a fast-growing Hispanic population that supported him by a wide margin in last year's election.

The Other Firsts

The previous firsts to the Supreme Court also came as periods of profound economic, social and demographic changes were transforming the nation. Like Sotomayor, Justices Louis Brandeis, Thurgood Marshall and Sandra Day O'Connor all reflected the broader shifts taking place.

In nominating Brandeis, the first Jew on the court, Wilson noted "his knowledge of modern economic conditions and of the way they bear upon the masses of the people."

Considered a brilliant public-advocacy lawyer when the U.S. industrial economy and financial system was taking shape, Brandeis came to the court in 1916 as an outsider. As a Jew, press accounts noted at the time, "his blood brought him early in his career in touch with men of his race exploited in sweat shops."

But Brandeis was criticized during his confirmation as too radical. Even among Jews, there was resistance. Some thought that Brandeis, a leader in the largely secular Zionist movement of the day who was not raised in a religious household, was not Jewish enough.

Johnson's choice of Marshall in 1967 as the first African American justice served as a capstone to the civil rights movement. Johnson said Marshall's nomination was "the right thing to do, the right time to do it, the right man and the right place." But Marshall still faced questions about his fitness for the post and was criticized in some quarters for being a purely symbolic pick. He endured one of the longest confirmation processes in modern history, and, in the end, 20 senators did not vote on his nomination at all.

Reagan campaigned on a pledge to nominate the court's first female justice, and in 1981 named O'Connor to the bench. He called her "truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity and devotion to the public good which have characterized the 101 'Brethren' who have preceded her."

Though not the favored choice of many liberal women's groups, O'Connor sometimes tipped the court in favor of abortion rights. She also embraced the influence of international laws on the U.S. legal system at the early stages of globalization.

In replacing Marshall in 1991 with Clarence Thomas, a descendant of slaves and the court's first conservative African American justice, President George H.W. Bush set in motion a long and bitter confirmation process. The hearings served as a venue for a national discussion of race, gender and the meaning of diversity that was rippling through the country at the time.

In framing Obama's first court appointment, the president and his senior advisers have been careful to emphasize Sotomayor's long experience on the bench and sharp sense of the law alongside her life story. Thomas had not established a clear judicial philosophy by the time he faced Senate hearings, something he acknowledged in his autobiography, and a fact that hurt him during the confirmation process.

A senior Obama adviser involved in Sotomayor's selection said choosing her "says something about the increasing diversity of our country and that different voices must be heard," adding that "there wasn't one decisive thing" that won Obama over.

"The president was aware, and is very aware, of the historical first, but I don't think he was motivated by an abstract historical milestone," the adviser said. "She had a very compelling description of her idea of judging, the way she prepares for cases, the way she writes her opinions and the way she has brought people together on the court."

Hispanics' Growth

Making up about 15 percent of the population, Hispanics have sought a larger voice in national politics and public policy in recent years and had lobbied the president to make his first pick for the court a Latino or Latina. Projections estimate that Hispanics will make up nearly a third of the population by 2050. A recent Gallup Poll showed that 78 percent of Hispanics approve of the president's performance so far.

Obama, who has written about his life experiences have shaped his politics, has endorsed diversity on the court as a way to bring its decisions more closely in line with Americans' everyday lives. Sotomayor has taken similar positions, which have become fodder for opponents of her nomination.

In a 2001 lecture at the University of California at Berkeley, Sotomayor said that "the aspiration of impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

"Justice O'Connor has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases," Sotomayor said. "I am . . . not so sure I agree with that statement."

Axelrod said Obama was mindful that "she will add a voice to the court that it lacks and that has never been there."

"There is a wisdom that comes through the struggles of where she has been," Axelrod said. "I think he sees that as great value for where we are right now."

Research editor Alice Crites contributed to this report.

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