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You would think with all of the hand wringing, shrieking, and bickering going on about Sonia Sotomayor, President Obama’s first Supreme Court nominee, her critics would be complaining about the only thing actually relevant to the discussion when critiquing candidates for the federal bench: their decisions. Somewhat curiously, the written opinions by Sotomayor have been virtually ignored by her Republican vilifiers.
All of the whining going on in conservative circles so far has been about supposed code words like “empathy,” her race and gender, or her astonishing admission that appeals courts “make policy,” which leads me to imagine to the nightmare scenario that must be playing out in their minds every night as they go to sleep:
President Obama will spend the next month going around the country, brainwashing people everywhere he goes, telling them about Sotomayor’s indefensible ability to relate to people. He’ll say something like “I have followed [her] career for some time. She is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.”
Then during the confirmation hearings, a Senator, perhaps Republican Tom Coburn of Oklahoma, will ask how her background and past experiences might affect (read: taint) her ability to make decisions from the bench. Sotomayor, the daughter of Puerto Rican immigrants, will no doubt respond somewhat like this:
Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. … And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. [...]And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
Republican’s collective jaws will drop. There will be outrage, calls for her to resign, possibly talks of secession. But they know Democrats already have 60 votes in the Senate and she will be confirmed. In the final cruel twist of this terrifying fantasy, with her lifetime appointment secure, in one of her first opinions, Sodemayor will verify the worst of their fears. She will write something like:
Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well….In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed.
And then they will wake up.
Unfortunately for them, if this bullshit is really all they care about, reality might end up being much worse than their dreams. Because the President who was touting his nominee’s empathy was George H. W. Bush talking about Clarence Thomas. And the man talking about his immigrant parents and his ability to understand their feelings? That was George W. Bush’s nominee Samuel Alito. Worst of all, the person claiming judges actually “make law” was none other than the conservative judicial messiah himself, Antonin Scalia.
Maybe then, and only then, Republicans will give her a fair shake and actually go back and read some of her opinions. It’s even possible they will take a deep sigh of relief and come to realize what people who actually read knew all along:
The Washington Post‘s E.J. Dionne says that today ”liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate.” The New York Times‘ Charlie Savage suggests that pro-choice groups are worried about how reliable a vote she will be. And Daphne Evitar thoroughly examines Sotomayor’s judicial record and concludes that liberals “may end up being disappointed with the president’s choice” because “it’s starting to sound like Obama nominated a highly capable technocrat.”