The Republicans really are showing their stripes these days, aren’t they?
We have a Democratic President who has a background as a progressive activist. We have a Democratic Senate, now with 60 votes. And yet, instead of nominating someone to the Supreme Court in the mold of William Brennan, Thurgood Marshall, or William Douglas, President Obama has nominated someone who is moderate on business issues, moderate on criminal issues, has no record on abortion, and was first appointed to the bench by a Republican, President Bush (the first). Her rulings reflect that she has no ideological axe to grind, and she has agreed with her Republican colleagues on the Second Circuit in constitutional cases close to 90% of the time. At best for progressives, it appears she’s going to just be another David Souter.
The bottom line here: Sonia Sotomayor is as good as the Republicans could have hoped for given the circumstances (that they lost the last Presidential election and have only 40 members in the Senate).
So what’s the fuss about? There are two possible theories here. First, they are worried that her 17 years as a lower court judge mask her true identity as a precedent-destroying liberal activist. And it’s true, of course, that Supreme Court Justices have more liberty with the law than lower court judges do. But, I have a hard time believing that Judge Sotomayor has hidden her true feelings for so long on so many cases. After all, judges like Rosemary Barkett, Stephen Reinhardt, and H. Lee Sarokin have no trouble showing their liberal credentials while sitting on a lower court.
Second, the Republicans making a stink about this just aren’t comfortable with a woman of color on the Supreme Court. After all, in every other respect, she’s the best they could hope for given the current political climate. Yet they’re making her out to be some judicial nightmare. Their obsession with her “wise Latina” remark makes this all too obvious. And their almost complete disregard for her judicial record other than Ricci, the case she voted against the white firefighters, makes this even clearer.
President Obama could have nominated someone the Republicans would have had a legitimate policy concern about. But Sonia Sotomayor is not that person. Which makes their race- and gender-based uproar that much more transparent.
- David S. Cohen