It has been said that the announcement of a Supreme Court nominee goes a long way in determining the outcome of the nomination. By all indications, Appeals Court Judge Sonya Sotomajor stands a good chance of being confirmed before Labour Day. Unless some indiscretion in her past is uncovered, Sotomajor appears to have the qualifications and the votes to make it to the highest court.
While we can assume she will eventually be part of the liberal voting bloc of the court, as her predecessor David Souter was, it will be interesting to see how the Republicans will vote at the end of the hearings. It may still be early in the process, but the GOP would do well to keep an open mind before the hearings and eventually vote on the basis of her qualifications rather than an ideological bent.
Currently, the court is composed of four conservatives (Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) and three liberals (Stephen Beyer, Ruth Bader Ginsberg, and John Paul Stevens, who is 89), with Arthur Kennedy often acting as the swing vote on the ideologically polarized court. It should be recalled that Kennedy’s vote is the one that made George W. Bush the 43rd president of the United States in 2000. Sotomajor’s nomination would therefore do little to shift the political balance.
(Besides, there have been some surprises over the years. David Souter, Arthur Kennedy and Sandra Day O’Connor were Republican nominees, but ended up as pragmatic moderates. My guess is that Sonys Sotomajor will end up as a moderate. Her record would indicate as such.)
The conservative faction is relatively young and should remain there for years to come. It is unlikely that Obama will be able to change the current balance in favor of a more liberal court within his first term. Just as many Democrats opted to vote for Bush nominees (Alito and Roberts) on the basis of their legal qualifications, the Republicans have a similar opportunity and it may be politically wise to use it. There is no way they can block an Obama nominee in favour of a conservative judge and they know it. The Republicans have a duty to diligently question the nominee’s qualifications and philosophy. But at the end of the day, she should not be rejected if she has the judicial qualifications.
We know that the divergence between constructionists (conservative) and judicial activists (liberal) represents the background for the upcoming battle. Republicans oppose policy making from the bench and insist on a strict interpretation of the Constitution. Many in the party even want judges who are socially conservative on issues like gay rights and abortion. Democrats counter that court activism was behind much of the progress on civil rights and women’s rights, and claim constructionists upheld laws that fostered segregation and racism. Whomever is right is fodder for legal scholars. Judges who fall somewhere in between are probably the best choice to serve on the court.
Why would I counsel a vote for her by the GOP? First, I believe she will pass the test on merit, like Alito and Roberts did. Second, it is high time that more women sit on the bench, and Hispanics, who represent the fastest growing demographic segment, deserve someone who understands their reality. This does not mean she is a token candidate. She was appointed to the Federal Court by Bush 41 and to the Appeals court by Clinton, so she has had bipartisan support in the past. Supporting her would be smart politics for a party in trouble electorally with women and Hispanics.
It’s bad enough that Cheney and Limbaugh have turned the GOP into a pro-torture, pro-Gitmo, and anti-Colin Powell party. If Republicans want to continue to marginalize themselves and be out of touch with voters, then they should vote Sotmajor down. However, if they want to begin the slow climb back to respectability and someday aspire to once again be the governing party, then they should begin the journey by voting yes to Sotomajor.