Judge Sonia Sotomayor would not have been my first pick to replace Justice David Souter – nor, for that matter, would have anyone else on President Obama’s reported short list. Beyond credentials and experience, his criteria and mine scarcely overlap. He sought a progressive justice with a particular sort of “empathy.” I would have preferred an originalism-oriented conservative minimalist with a libertarian streak. But this difference in judicial philosophy is not enough, in my view, to justify opposing her confirmation.
There is no question Judge Sotomayor is qualified to be a Supreme Court justice. She has substantial legal experience and is a tremendously accomplished woman. Some of her rulings as a district and appellate judge raise concerns, as do some of her speeches, and I expect that, once confirmed, Justice Sotomayor will write and join many opinions with which I disagree. Yet because I believe the Senate should show the President a fair degree of deference in the judicial confirmation process, particularly when it comes to judicial philosophy, I see insufficient reason to oppose her confirmation. Barring some extreme (and extremely unlikely) revelation, I would encourage the Senate to confirm her before the start of the Supreme Court’s next term.
Some with whom I often agree, including some of my co-bloggers, do not believe the Senate owes the President so much deference. Ilya Somin thinks the Senate should consider ideology in the confirmation process. My friends Michael Rappaport and John McGinnis would go farther, endorsing a de facto super-majority requirement for all Supreme Court nominations. They make a good case, but I am not yet convinced. I fear that a political culture in which the Senate is less deferential and is a political culture in which too many exceptional individuals will be precluded from potential service on the Court. I would rather (re)establish a norm of focusing on a nominee’s experience and credentials, instead of their judicial philosophy.
Then-Senator Obama adopted a quite different view. He accepted that ideology and judicial philosophy are legitimate grounds for opposing a nominee’s confirmation. On this basis he opposed two highly qualified, mainstream conservative nominees, voting against John Roberts and supporting a failed filibuster attempt against Samuel Alito. If then-Senator Obama’s standard is the correct one – that is, if Senators should vote against highly qualified nominees on purely ideological grounds – then I see little reason for Senate Republicans not to vote against Sonia Sotomayor. What’s sauce for the goose is sauce for the gander. She is a highly qualified, mainstream liberal nominee, just as Samuel Alito was a highly qualified, mainstream conservative nominee, and once confirmed Justice Sotomayor is likely to fit in just as comfortably on the liberal wing of the Court as Alito has on the conservative side.
So if then-Senator Obama’s conception of the Senate’s role in advise and consent were the correct one, conservatives who follow his lead would urge opposition to – and perhaps even a filibuster of – Judge Sotomayor’s confirmation. But I believe then-Senator Obama endorsed the wrong standard. And so I hope Senate Republicans are disinclined to follow his lead.
Insofar as some conservatives will oppose Sotomayor's confirmation, arguing the Senate owes no meaningful deference to a President's judicial nominees and that she is too liberal to warrant their support, I further hope they will make every effort to keep the discussion on a civil plane. Opposing a nominee on substantive grounds is one thing; name-calling and personal disparagement are another.
Unfortunately, in the past few weeks we have seen quite a few extreme and intemperate attacks on Judge Sotomayor. The process and judicial nominees of both parties deserve better. Some on the Left were quick and careless to label Judge Charles Pickering a “racist”; now some on the Right have committed the same offense against Judge Sotomayor. (And, yes, calling her a “racialist” is just as bad). Whatever was said against Pickering, Clarence Thomas, Miguel Estrada, Priscilla Owen, et al., does not excuse the current descent into gutter politics and gross ad hominem attacks.
As I’ve noted in previous posts, I have concerns about Judge Sotomayor’s now infamous “wise Latina justice” speech. Placing her remarks in context adds some depth and nuance, but it does not make my concerns go away. Steve Chapman, for one, thinks the context makes the statements worse. Yet it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a “racist.” To acknowledge that ethnic background and personal experience can and should influence judicial behavior, even while disparaging the ideal of judicial objectivity, is not to embrace racial bigotry. As Senator John Cornyn had the honor to observe, such attacks are “terrible” and “wrong.”
Now that the most extreme partisans on each side have had the chance to vent their spleens (and mail out their fund-raising appeals), I hope the debate over Sotomayor’s nomination will rise to a higher level. The Supreme Court matters, and a nomination to the Court presents an opportunity for serious discussion about the proper role of the judiciary (even if it’s not some grand “teaching moment”). But elections have consequences, and one consequence of President Obama’s electoral victory is that he gets to nominate judges for Article III courts.
Conducted substantively and civilly, discussion and debate over her record of judicial decisions and the likely effect of her confirmation could be edifying for the public (not to mention for our students). But this requires critics to present their critiques in a substantive and honest way. Unfortunately, much of the discussion about Sotomayor to date has failed to meet that standard. It’s not too late for something better.