Stuart Taylor Jr. sits down with TheAtlantic.com’s Bob Cohn for a conversation in reaction to the nomination of Sonia Sotomayor. Read a more detailed take on the political ramifications in an earlier post on The Ninth Justice.
I have given some reasons (noted below) why Sonia Sotomayor might be an especially controversial pick with conservatives and some centrists — not to mention yours truly.
So what political calculation might underlie President Obama‘s decision to nominate her anyway, despite his various suggestions that he would like to make a consensus pick?
It’s possible that Obama was simply wowed by her up-from-modest-circumstances life story, her supposed "empathy" for the poor and powerless, her summa cum laude performance at Princeton University, her judicial opinions on obscure subjects, or her performance when Obama interviewed her.
But the political payoff of naming the first Hispanic justice — and a woman to boot — seems to me the key. This is a shrewd nomination politically, if not necessarily a good one jurisprudentially, and not only because of the obvious payoff with Hispanic voters.
The choice of Sotomayor also puts Republicans and moderate Democrats who may be deeply unhappy with her jurisprudence in a lose-lose position, and Obama in a win-win position.
If Republicans attack Judge Sotomayor’s more controversial actions, they risk provoking a backlash among Hispanic voters, who have already been moving into the Democratic column in droves.
On the other hand, if Republicans hold their fire to avoid offending Hispanic voters, the president gets the benefit of installing a justice who seems deep into Democratic identity politics without the cost of an especially contentious confirmation battle.
The Republican dilemma is underscored by the fact that the Sotomayor actions they might be most eager to attack are themselves especially likely to engage the sympathies of Hispanic voters.
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life."
— Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001
The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor — widely touted as a possible Obama nominee to the Supreme Court — has drawn very little attention in the mainstream media since it was quoted deep inside The New York Times on May 15.
It deserves more scrutiny, because apart from Sotomayor’s Supreme Court prospects, her thinking is representative of the Democratic Party’s powerful identity-politics wing.
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere "aspiration because it denies the fact that we are by our experiences making different choices than others." And she suggested that "inherent physiological or cultural differences" may help explain why "our gender and national origins may and will make a difference in our judging."
So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.
Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.
Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:
What matters on the Supreme Court is those 5 percent of cases that are truly difficult… In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or… whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" — and to all others — not to mention the constitutional command to provide all persons "the equal protection of the laws."
President Obama will not begin interviewing possible Supreme Court nominees until next week at the earliest, according to the White House. So what’s going on behind the scenes?
I don’t know for sure, but I can guess: Apart from vetting the leading prospects to flush out any character flaws, ethical issues or tax problems of the kind that have plagued some Obama nominees, the White House is probably devoting lots of attention to ideological vetting.
The goal of this process, which reportedly started long before it was clear that there would be a Supreme Court vacancy to fill, is to forecast insofar as possible how each prospect might rule on the biggest issues likely to come before the court in the next few years.
Like any president, Obama would prefer a nominee likely to uphold his own personal convictions on such issues as presidential war powers, abortion, racial affirmative action, voting rights, gay rights, religion in public life, assisted suicide, campaign finance reform and use of a litigation as a tool of social reform. Indeed, as someone who taught constitutional law, Obama may care more than most presidents about how his nominee will handle the big issues.
Ideological vetting of judicial nominees is a tricky business. A quotation often ascribed to President Lincoln helps explain why. Lincoln wanted to appoint a chief justice who would uphold the Union’s legal tender law, which required people to accept paper money as payment for private debts. "We cannot ask a man what he will do," Lincoln supposedly said, "and, if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known."
Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court’s progressive wing.
Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.
The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by "judicial activism."
A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.
This is not to suggest that the president will pick a centrist, let alone a conservative. Filling moderately left-of-center Justice David Souter’s seat with anyone seen as more centrist would be a stunning abandonment of Obama’s campaign stance that would infuriate his liberal base.
But nominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics. And although some of Obama’s past statements are seen by critics as a formula for judicial activism, he has also shown awareness of its perils.
As a matter of policy, consider Obama’s most important responsibility: protecting our national security from jihadist terrorism and other threats.
The following story originally appeared in the September 2005 issue of The Atlantic during another time of flux for the Supreme Court.
I’ve been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)
The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.
That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court’s marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that — places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they’re not like you and me.
There was something of a disconnect between the April 29 oral arguments at the Supreme Court about the constitutionality of the Voting Rights Act’s celebrated Section 5 and that provision’s most important contemporary effect on the body politic.
The arguments, and the media coverage, focused on whether the South — including the tiny Texas municipal utility district that brought the case — and other areas covered by Section 5 remain more racist than the rest of the country. That’s the premise on which Congress, in 2006, extended for another 25 years the extraordinary federal oversight that in the late 1960s broke the back of persistent white efforts to disenfranchise black voters.
But in recent years Section 5’s most important impact has been less benign. It has been used to pressure covered states and localities to adopt extreme racial gerrymanders to create more safe districts for black and Hispanic politicians.
Section 5 could have a large impact on the redrawing of thousands of election districts after next year’s census. It virtually requires nine mostly Southern states and portions of five others (called "covered jurisdictions") to submit their redistricting plans — as well as all other changes in voting rules, right down to moving a polling place across the street — for "prescreening" by the Justice Department’s Civil Rights Division.
That division, long staffed mainly by liberal Democrats, has a pattern of using its vast Section 5 powers over mostly conservative states to push for racial gerrymanders.
(Covered jurisdictions also have the option of seeking federal court approval, but that process is so cumbersome that it has rarely been used.)
Editor’s Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. — Stuart Taylor Jr., May 5
Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:
• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 — many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter’s fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.
He moved in his first few years from moderate-liberal to liberal — most notably in joining the Sandra Day O’Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues — abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" — he was never conservative.
• With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily. But the Republicans could bleed him some politically if he made an exceptionally controversial pick.
"A democracy as resilient as ours must reject the false choice between our security and our ideals," President Obama said on April 16, "and that is why these methods of interrogation are already a thing of the past."
But is it really a false choice? It’s certainly tempting to think so. The fashionable assumption that coercive interrogation (up to and including torture) never saved a single life makes it easy to resolve what otherwise would be an agonizing moral quandary.
The same assumption makes it even easier for congressional Democrats, human-rights activists, and George W. Bush-hating avengers to call for prosecuting and imprisoning the former president and his entire national security team, including their lawyers. The charge: approving brutal methods — seen by many as illegal torture — that were also blessed, at least implicitly, by Nancy Pelosi, now the House speaker, and other Intelligence Committee members in and after 2002.
But there is a body of evidence suggesting that brutal interrogation methods may indeed have saved lives, perhaps a great many lives — and that renouncing those methods may someday end up costing many, many more.
To be sure, the evidence in the public record is not conclusive. It comes mainly from Bush appointees and Central Intelligence Agency officials with records to defend and axes to grind. There is plenty of countervailing evidence coming from critics who have less access to the classified information that tells much of the story and have their own axes to grind. There are also plausible arguments for renouncing coercive interrogation even if it does save some lives.
