There is no doubt that Judge Sotomayor will be easily confirmed by Congress. The question is will the Republicans go all out against her or will they let this one go. Conservatives’ worst nightmare would be an unapologetic activist judge who also happens to be a judicial visionary and a leader (think the yang to Scalia or Roberts’ ying). This should not be a concern with Judge Sotomayor. Everything from her rulings, opinions and even the controversies surrounding her are fairly mediocre. Her only distinction is that the US Supreme Court has no Hispanic representation.
President Obama has chosen someone whose only real qualification over her peers is her tough Puerto Rican background. It is only natural that he would pick someone whose personal background is far more inspiring than her professional one. In her years of experience on the bench Ms. Sotomayor has issued judgments that have no bearing on the larger picture. None of her rulings have set long lasting precedent on important issues nor has she written opinion that is a must read in law schools. The few high profile cases that she issued rulings on include the MLB strike and the Ricci vs. DeStefano case. The strike was a fairly straightforward labor dispute and the Ricci vs. case will in all probability be overturned by the US Supreme Court next month. Sotomayor the judge seems to be just one of many replaceable civil servants that keep the justice system running.
Although Judge Sotomayor seems to possess a concerning sense of superiority because she happens to be a ‘Latina woman’, she does not appear to be a blatant liberal. Clearly her statements at Duke and Berkley will get a lot of attention but it is interesting to see how she immediately tried to parse and retract (badly) her statement that ‘appellate court is where policy is made’. This is not a sign of an overtly activist judge.
Moreoever Judge Sotomayor has a few rulings that should go over well with conservatives. Her ruling in favor of freezing government aid to foreign groups that use it for abortion related activities suggests she does not always try and interject personal beliefs into her judgments. Similarly her dissent on a 2002 case involving anonymous racist comments over the police radio is encouraging in terms of willingness to uphold the First amendment. An explanation about the ‘abomination’ statement should provide insights into her stance on crime and punishment. Hopefully she did not ‘identify’ and/or ‘empathize’ with that particular drug offender.
Republicans should demand clear answers on her views about issues on which she has no background such as wire taps, detainee rights, gun laws and the death penalty. It would also be an interesting exercise to see whether her rulings (or prosecutions) differ for non white defendants, and especially for Hispanic women. However it is the Ricci case will end up being the focal point of the confirmation process, especially when it is overturned. One can expect Mr. Ricci and one of the other firefighters (who happened to be Hispanic) to be called on as witnesses. The most important questions of the entire process will be:
a) Why she chose to summarily dismiss the case;
b) Will she admit her mistake in doing so now that the Supreme Court has overturned her decision?
At the end of the day, the GOP must understand that an all out fight over Judge Sotomayor would be a waste of resources and a net political loss. She is just a pawn on Mr. Obama’s political chess board. They should carefully but powerfully point out that the President has in fact insulted the Hispanic community by packaging political appeasement as the historic elevation of a Puerto Rican woman. Having made that point, their strategy should still be to confirm this Hispanic woman with a compelling background who also happens to be an average judge. They should save their energy for the next one. It does not take a ‘wise Latina’ to realize that this pick could have been a lot worse.