President Barack Obama has nominated Judge Sonia Sotomayor, of the Second Circuit Court of Appeals, to replace David Souter as an Associate Justice of the Supreme Court.
A few things to keep in mind:
- Judge Sotomayor has a strong history of bipartisan support–she was nominated to her current position by President Bill Clinton; before that, she was nominated to the U.S. District Court for the Southern District of New York by President George H. W. Bush.
- This makes Sonia Sotomayor more bipartisan than John Roberts, who was nominated to the D.C. Circuit court by George W. Bush, who then nominated him to the Supreme Court.
- This also makes Judge Sotomayor more bipartisan than Samuel Alito, who was nominated for the Third Circuit Court of Appeals by President George H. W. Bush and nominated to the Supreme Court by President George W. Bush.
- When George W. Bush was making court appointments, conservatives claimed that the Senate’s constitutional duty to provide “advice and consent” on judicial nominees meant that they could only oppose a court nominee if he/she were unqualified, not due to ideological differences. Conservatives also claimed that filibustering judicial nominees was unconstitutional, demanding a definitive “up or down” vote on all nominees. When the possibility of a Democratic filibuster arose, Republicans threatened to eliminate the filibuster entirely for this very reason.
- No matter who President Obama nominated–whether he chose a judge with broad bipartisan support like Sotomayor or someone more ideological–conservatives were going to call that nominee a “liberal” and an “activist judge.” Conservatives aren’t interested in determining whether or not Judge Sotomayor is fit to serve (since she undeniably is); they’re interested in smearing her for no other reason than the fact that she was appointed by a Democratic President.
- UPDATE: Another important point: Judge Sotomayor has been a member of the federal judiciary longer than any other sitting Supreme Court Justice had at the time of their nomination.
UPDATE: The only solid criticism conservatives have been able to make about Sotomayor was her ruling that the City of New Haven could throw out its promotional test for firefighters and start over with a new test, since the city believed the test had a “disparate impact” on minority firefighters and they feared that those minority firefighters could sue.
That doesn’t exactly seem like a slam-dunk disqualifier to me or doctrinaire liberal ruling to me. Frankly, if that’s the most Republicans can criticize Sotomayor on then I don’t think she or President Obama have much to worry about.
UPDATE II: Here’s more proof that Judge Sotomayor, contrary to the right’s talking points, is not some kind of hard-line far left doctrinaire liberal:
- In Center for Reproductive Law and Policy v. Bush, Judge Sotomayor voted to uphold the Bush administration Mexico City policy, which requires foreign organizations receiving U.S. funds to “neither perform nor actively promote abortion as a method of family planning in other nations,” as constitutional.
- Judge Sotomayor dissented in Pappas v. Giuliani, claiming that the NYPD could not terminate an employee from his desk job for sending racist materials through the mail, since the First Amendment protects speech by the employee “away from the office, on [his] own time,” even if that speech was “offensive, hateful, and insulting.”
In other words, contrary to what the GOP would have you believe, Judge Sotomayor seems like a fair-minded legal scholar with significant respect for the Constitution and the rule of law.
UPDATE III: And let’s keep in mind some of John Roberts’ and Samuel Alito’s more controversial rulings before they were appointed to the Supreme Court:
- In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts ruled that it was constitutional for police to strip-search a 12-year-old girl for violating the Washington Metro’s zero-tolerance policy toward eating food in subway stations.
- In Doe v. Groody, Alito claimed that it was constitutional for police to strip-search a mother and her 10-year-old daughter while they were carrying out a search warrant for the house they lived in.
- In Chadwick v. Janecka, Alito held that that there was “no federal constitutional bar” to the “indefinite confinement” of a man imprisoned for civil contempt because he claimed he could not pay his $2.5 million debt to his wife.
I doubt you could nominate someone to the Supreme Court who doesn’t have some kind of controversial opinion or ruling in their past.
Yet, Congress has confirmed nominees with some objectionable rulings/opinions to the Supreme Court. Just because Republicans can find one or two of Sotomayor’s opinions they disagree with doesn’t–and shouldn’t–disqualify her from serving on the Supreme Court.
UPDATE IV: The following eight Republican Senators voted to confirm Sotomayor for the Second Circuit Court of Appeals:
Specter (has since switched to the Democrats)
In other words, the GOP won’t be able to defeat Sotomayor’s nomination without several instances of stunning legislative hypocrisy.
UPDATE V: MSNBC just talked to Senator Orrin Hatch, one of the eight Republicans who voted to confirm Judge Sotomayor in 1998. He brought up two points that I think need to be dealt with:
Sonia Sotomayor was only nominated to the federal bench by George H. W. Bush so that Senate Democrats would confirm one of Bush’s more conservative nominees.
Regardless, Sonia Sotomayor was nominated to the federal bench by a Republican President. Every judicial nomination is affected politics and political calculations, but George H. W. Bush still thought Sotomayor was accomplished, qualified, and had the appropriate temperament and respect for the rule of law to serve as a federal judge.
While some Republican Senators voted to confirm Judge Sotomayor to the Second District Court of Appeals, that court is far less important than the Supreme Court; thus, Sotomayor now should be held to different standards.
Actually, I’d argue that federal courts of appeal are extraordinarily important considering that the Supreme Court only accepts about 1% of the cases that are brought before it. In other words, federal courts of appeal are far more often the last resort for major constitutional cases than the Supreme Court.
I’m not claiming that every federal appeals court judge is automatically qualified to be a Supreme Court justice, but it’s pretty appalling for Republicans to claim they only voted to confirm Sonia Sotomayor because the Second Circuit Court of Appeal wasn’t worth their opposition.
UPDATE VI: And the RNC boneheadedly sent their Sotomayor talking points to the press, so feel free to take a gander at their playbook for sinking the Sotomayor nomination.