This town loves nothing so much as the prospect of a good battle over a Supreme Court nominee. Endless hours are devoted to speculation about the chances of Senate confirmation and every stone on the candidate’s path through life will be turned over by the press, opposing forces and just plain acquaintances who want a moment in the spotlight.
But barring the discovery of something extraordinarily unsettling in Sonia Sotomayor’s background and after nit-picking her past remarks off and on the bench, those who have turned so many past nominations into blood baths are going to be sorely disappointed. The first Hispanic to be selected for the nation’s highest judicial honor should be awarded a relatively easy approval if for no other reason than the sheer advantage in numbers held by her Democratic supporters.
Republicans and their party’s conservative base are pretty much toothless in this process, all Rush Limbaugh’s ranting and former House Speaker New Gingrich’s demand she withdraw because she is a "racist" notwithstanding. They’re simply caught between those numbers and the dangers of further eroding their chances for a comeback by angering the country’s largest minority with too aggressive opposition. Hispanics, unlike African Americans, don’t bloc vote, but challenging the first one of theirs to achieve this lofty status is bound to stimulate unification. Blood is thicker than water after all. So why take the risk in a game almost surely decided?
Besides, does anyone believe Obama would or could nominate anyone that would satisfy Limbaugh or Gingrich? They’re just compulsively unable to resist going through the motions.
Actually, Sotomayor’s nomination was a good one from the perspective of this president. Barack Obama had left clues around for weeks about what he wanted in a high court candidate — liberal inclinations, intellect, common sense and life experience with the practical needs of most Americans. Add to that her prosecutorial background and long tenure on the federal bench at both the district and circuit level and her profile was closest to the president’s specifications.
Her exalted academic record, both as an undergraduate and in law school, certifies her intellectual credentials. In some ways her unsheltered, underprivileged upbringing seems refreshingly far less sterile than many of her peers. She persevered against all odds. She is divorced and has no children. She likes beer and baseball and for a time, at least, cigarettes. An engagement after her divorce seems to have fallen through. In other words, she is not just some bloodless judicial wonk.
Conservatives are going to attempt to paint her as an activist rather than a constructionist whose ethnicity too often influences her thinking. The most prominent example of that is one involving fire fighters in New Haven, Conn. who have charged her with reverse racism in a matter now before the court she is about to join. Sotomayor voted to uphold a lower court’s decision to deny a lawsuit by white firefighters charging they were discriminated against by the city when it pitched out a promotions exam because no African Americans qualified for advancement.
Her decision in this case, which many expect to be overturned before she joins the high court, is clearly troublesome. It is difficult to interpret this as anything but deprivation of promotion based solely on race. It appears totally unlikely to scuttle her nomination but it has the potential of resonating with many Americans. One can only wonder what she and her fellow appeals court judges would have ruled had only blacks qualified for the promotions.
On the other hand, Sotomayor dissented in a case in which the appeals court ruled the New York Police Department could fire an employee who responded to an appeal for charitable contributions with mailings of racist and bigoted material without violating his First Amendment rights. She strongly disagreed with the firing although she found the employee’s speech "offensive, hateful and insulting." She said the court should not ignore "the centrality of the First Amendment freedoms in our lives" simply because of the language or a potential political backlash. Go figure.
This nomination might not produce one of those television spectaculars, but it certainly is an interesting one.
(E-mail Dan K. Thomasson, former editor of the Scripps Howard News Service, at thomassondan(at)aol.com.)