Obama has picked Sonia Sotomayor for the Supreme Court. I don’t know much about her, so I have no opinion about her legal philosophy, although she certainly appears to have the paper credentials. Of course, so did Alito and Roberts, though I’m sure we can be confident that she won’t be fellow travelers with them on the road to the 19th century.
I’m more interested in what this appointment has to say about Obama. Of all the names being bandied about, it was Sotomayor that drew the most opposition, for reasons it’s hard to fathom, since she is apparently no more liberal than the others mentioned as possibilities. Maybe it was just reflexive racism, but as soon as her name surfaced, the whispering campaign began in earnest, and very serious people counseled Obama not to nominate her, given the blow that would be to the spirit of bi-partisanship abroad in the land. It’s important, recall, for a moderate to liberal president to assuage the extreme right, though an extreme right president was never expected to moderate his choices (and never had to).
The fact that Obama decided to go with Sotomayor speaks well for him. He took the Republicans up on their implicit challenge, and once again, if my guess proves true, he will have shown himself to be an astute politician, able to see as many moves ahead as a chess grandmaster. He just continues to run rings around them, or to paraphrase Hamlet, he “delve[s] one yard below their mines, and blow[s] them at the moon.” The more they oppose her, the more they are likely to lose, looking more and more like what they are: the party of white racists. In the end, no matter what they do, she will be confirmed. They may raise some money off the fight, and they may temporarily energize their dwindling base, but they will lose where it counts. Obama wins in another way; this sweeps the absurd Guantanamo controversy off the front page and out of the discourse. Everyone knows the beltway crowd is too stupid to follow two issues at once.
I know some pundits are saying the Republicans will quickly back off, but I’m not sure they can afford to alienate their base by doing so, and I’m not sure they can stop themselves even if they know they should. It’s not like they’re particularly good at avoiding self destructive behavior. But either way, in the end, Obama wins and he’s shown them that he’s not going to be pushed around.
Now, if only Scalia would get elected Pope or something, we’d be on our way to a decent court.
UPDATE and ASIDE: I can’t let this subject go without mentioning the fact that John Yoo is opposed to Sontomayor because-get this-she is guilty of “results oriented” jurisprudence. For the non-lawyers who may not be sure of the meaning of the term, “results oriented” refers to legal analysis that begins with a desired result and then comes up with a rationale to achieve that result.
Generally speaking, those with whom we disagree engage in “result oriented” legal analysis, while those with whom we agree are original legal thinkers. That’s human nature.
In fact, every judge engages in at least a bit of results oriented behavior, but if one wanted to teach a course on the subject, Yoo’s torture memos would be the example par excellence of results oriented legal work.
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