Sonia Sotomayor

As expected, President Obama named Appellate Judge Sonia Sotomayor as his nominee for the vacancy on the Supreme Court. I called this over a year ago, even before Obama was nominated for President, but that's not because I'm clairvoyant, it was a fairly obvious prediction, given Sotomayor's gender, ethnicity, and her sterling qualifications for the job. She was, to put it simply, the one to beat.

Therefore it's a little odd to hear all the rancor in some quarters that her nomination has stirred up. Most of it is from cable-TV mouthpieces like Pat Buchanan and the right-wing blogosphere, who were prepared to blast any Obama pick. One gentleman said, on MSNBC, that Sotomayor was an activist judge who rules on her feelings rather than the law. Asked why he thinks this way, he said it was because Obama picked her. I wonder what he would have done if Obama had tapped Robert Bork.

After sifting through the articles in today's paper, it seems to me that Sotomayor is fairly moderate, with a liberal tinge. The word that the right tosses around, "activist," is fairly meaningless, because one can be activist from the right or the left. Besides, there is no evidence from her rulings that she is an activist. Of 380 opinions she has written as an appeals court judge, only three have been overruled by the Supreme Court. Legal scholars seem to think that she applies the law strictly, and there is nothing terribly outlandish about her opinions (some think that there's nothing terribly brilliant about them, either). The one case she is likely to be grilled about is Ricci v. DiStefano, which ruled against white firefighters of New Haven who brought a case of discrimination concerning tests for promotion. This case is before the Supreme Court now, and those in the know think it will be overturned. But here's the rub--her ruling was not activist. She sided with the established law in the case, and ruled in favor of the city, which is what any good constructionist would do.

From my vantage point, my only concern is that she is not liberal enough. The Obama forces are straining to say that she's moderate, pointing out that she voted with Republican appointees ninety-five percent of the time. It's maddening that Obama couldn't stand up there and say what this country needs is a good firebrand liberal. He was elected comfortably, after all, which means that court appointments are a reflection of what voters chose last November. Conservatives can just suck it.

So what's next? It appears that she will be fairly easy confirmed, for many reasons. One is strictly mathematics. If Al Franked takes his Senate seat by the hearings the Democrats will have a filibuster-proof majority. Unless Sotomayor has some shocking skeleton in the closet (other than her being a Yankee fan, I see nothing troubling) it's outlandish to think that more than ten Democrats will vote against her. Beyond that, she is eminently qualified. She has more experience on the federal bench than any current Justice had before they were confirmed, indeed than any Justice in the last 100 years. When she was confirmed as an Appellate Judge in 1998, some Republicans voted against her because they feared she was Supreme Court timber, so for them to say they need time to "get to know her" seems a specious argument.

And then there's the Hispanic factor. This was a historic nomination, as she is the first Hispanic to be chosen for the court (Benjamin Cardozo had roots on the Iberian peninsula, but it's interesting to note that the definition of Hispanic does not include those from Spain--it's those people who are descended from people of the Americas of Spanish origin). Do Republican Senators really want to get nasty with a woman with such a heartwarming story? Does John Kyl of Arizona, or John Cornyn of Texas, want to risk angering their Hispanic constituents? Ultimately I think not. They'll express concern and seriousness, and may vote against her, but won't toss lightning bolts or put up obstacles. Instead, they'll let the likes of Limbaugh and Hannity and other ankle-biters stir up the waters, which will get some contributions from the rabid base.

I remember the first time I ever heard Sonia Sotomayor's name, and it's the same with a lot of sports fans. She ruled in 1995 against the Major League baseball owners, which had the immediate effect of ending the baseball strike. She was seen as a hero then to baseball fans, and it's somehow appropriate that 14 years later she is once again in the news.