So far, the nomination of Sonia Sotomayor for the Supreme Court has produced the expected reactions from political commentators.
On the right, Sotomayor is being positioned as a liberal activist and an identity-politics hack who indulges leftist policy preferences rather than ruling fairly. On the left, Sotomayor is being praised and her critics positioned as desperate obstructionists who are already stooping low to try to stop the nomination.
We know this dance donâ€™t we? Didnâ€™t we do the same predictable steps with Samuel Alito, except the dancers stood on opposite sides of the floor? So letâ€™s slow down for a moment and try to look at whether Sonia Sotomayor is qualified â€“ not just whether or not her rulings will benefit our political goals.
For background, CNN provides a good career history complete with controversial decisions and statements while Powerline prints colleague opinions on Sotomayor from the Almanac on the Federal Judiciary (Powerline adds predictable editorializing before the excerpt but the excerpt itself is informative).
Based on the basic information we have available, Sotomayor has the requisite judicial experience (sheâ€™s no Harriet Miers) and seems to be a highly intelligent, tough jurist who pushes lawyers hard and dislikes weak arguments. All good things. But when it comes to critiquing Sotomayor, I think we should look deeper. Hereâ€™s what I wrote about the Alito nomination and I think it applies here too:
I think the proper way to question this and every nominee is by delving deep into their judicial philosophy. What methods does he use to arrive at his decisions? What role should the original intent of an Article or Amendment play in decision making? What role should precedent play and when is it acceptable to overturn precedent?
Will Alito rule consistently, based on rigorous intellectual discipline or will he twist logic to fit desired outcomes? In my mind, thatâ€™s the real question. And thatâ€™s how I would decide if he should be confirmed.
I donâ€™t really care about the motivations behind a nomination. Of course a liberal president will choose a liberal judge (like our former conservative president chose conservative judges). And, as far as Iâ€™m concerned, trying to measure what role identity politics played in this nomination is a dead-end street. We have to judge the nominee on her qualifications and what she will bring to the highest court.
My general philosophy on judicial nominees is this: Iâ€™m wary of judges, whether liberal or conservative, who use their position to try to remake the nation as they see fit. Thatâ€™s the basic criteria/prejudice Iâ€™ll use in critiquing Sotomayor. But first Iâ€™ll need to learn a lot more and not simply rely on the sound bites and small collection of important cases currently filling the coverage of her nomination.