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A Boring Bench?

Why it's good for liberals that Sonia Sotomayor is not the standard-bearer that they have been waiting for.

When Sonia Sotomayor’s name surfaced on almost every short-list for Souter’s potential replacement, a very strange thing happened: Some on the left were being just as hard on her as movement conservatives, questioning the judicial prowess of a woman who was at the top of her class at Princeton, an editor of the Yale Law Journal, and then a federal judge for 17 years.

It’s easy to understand why conservatives might try to advance this line--but what explains similar grumbling that could be heard in some leading liberal legal circles? I think the explanation is that some liberal activists fully understood that Sotomayor is not likely to be the standard-bearer for the second coming of the Warren Court for whom they have waited so long--a likely outcome if her nearly two decades as a federal judge and two previous Senate confirmation hearings are any indication. That may not be so good for someone in my business (convincing students that studying Supreme Court opinions and judicial behavior is the key to understanding American politics). But it might, in fact, be a very good thing for the American political system itself.

Let’s be clear: Sotomayor is a liberal judge, having issued many decisions welcomed and applauded by liberals in areas ranging from labor law to the quite recent New Haven Ricci case. But she is a judicial moderate who will fit quite comfortably on the bench with Justices Stephen Breyer and Ruth Bader Ginsburg. Sotomayor has ruled in favor of corporations against their stockholders, voted to support prison officials over their prisoners, testified that Congress has the right to limit and define the jurisdiction of the lower courts, and refused to suppress evidence seized despite a clerical error by the police. She has even issued a passionate defense of the right of a police employee in New York to send “patently offensive, hateful and insulting” racist communications on his own time: The “concerns about race relations in the community,” she wrote in a dissent, cannot and must not “gloss over” three decades of jurisprudence and “the centrality of the first amendment in our lives just because” the government or the court is “confronted with speech it does not like.”

It should not be surprising that 24 Republican senators--including Ted Stevens, Rick Santorum, Jesse Helms, Bill Frist, and Bob Bennett--voted to confirm Sotomayor to the circuit court in 1998. They felt comfortable voting for a judge who actually ruled against a claim of invasion of privacy to order the release of notes that Vince Foster (he of Clinton Whitewater fame) had in his briefcase before he died. Sotomayor also struck down a New York ordinance that banned the display of a religious symbol (a menorah) in a public park. Even corporate lawyers have been lining up over the past two days to announce that she is no threat to corporate interests, having ruled in their favor on numerous occasions.

Yes, Sotomayor has made a couple (and remarkably few, really) comments off the bench that suggest she has thought about--and cares deeply about--issues of diversity and gender. In one speech she noted that “gender and national origins may and will make a difference in our judging.” But in that same speech she also said that she agreed with her colleague, Judge Miriam Cedarbaum, that judges must strive to “transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.”

Sotomayor also noted in a question-and-answer session that the appeals courts are “where policy is made.” That’s the sound bite you’ll hear--but she didn’t stop there, immediately adding, “I’m not promoting it, and I’m not advocating it,” but rather was explaining that “the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application." This is, quite frankly, a simple statement of fact. We may not like to say it out loud, but constitutional interpretation--left, right, or center, originalist or evolutionary--shapes and constrains American politics and public policy.

These moderate tendencies may explain why some liberals are not cheering her nomination; justices like Sotomayor are not likely to offer the fast track to sweeping change that these activists want. Asked at her 1997 confirmation hearings by then-Senator John Ashcroft if she would “read additional rights into the constitution, like a right for homosexual conduct on the part of a prisoner,” Sotomayor responded: “I cannot do it, sir. I cannot do it because it is so contrary to what I am as a lawyer and as a judge. The constitution is what it is. We cannot read rights into” the constitution or its amendments.

Sotomayor’s moderate record may discomfort some liberals who, starting with the civil rights movement and accelerating in the wake of the Watergate crisis in the mid-1970s, put their faith and hope in the courts while largely abandoning what they perceived to be an increasingly corrupt or incompetent political system. Law--and the Supreme Court--seemed to offer a cleaner, more transparent, and morally superior way to achieve policy goals. It was also more efficient: One requires a modest team of lawyers in New York and Washington--the other requires armies of workers in 435 congressional districts. And legal decisions don’t require the negotiation, compromise, and bargaining that is the very essence of the policymaking process.

But as important and vital a role as the courts can and do play, real change requires changing people’s minds. Roe v Wade changed the law, but it didn’t change minds; it did inspire a political campaign among opponents, while supporters came to rely ever more heavily on the court to protect this right. The problem is that if you don’t enact these rights through legislation, then when the day comes that Thurgood Marshall becomes Clarence Thomas, and Sandra Day O’Connor becomes Samuel Alito, the new rights become pretty tenuous.

It is long past due that liberals recognize that real and lasting change in America will only come through the political process. The courts have a vital role to play, to be sure, particularly in breaking through institutional roadblocks that artificially prevent long-needed and broadly popular change. But real, long-term change doesn’t come from court orders. And that means the focus needs to be more on politics, and less on law. If Sotomayor is a disappointment for liberals who continue to pin their hopes and dreams on the court, then it might be just the tough-love liberals need to turn their attention across the street, to the House and Senate. Barack Obama seemed to understand this when he left the practice of law and ran for state senator in Illinois, the U.S. Senate, and the White House.

In a 1992 interview with The New York Times, Sotomayor insisted that she was “a down-to-earth litigator,” who did not expect to have much time “to spend on lofty ideals.” Sotomayor’s record since then suggests that she will be a reliable--but far from ideologically pure--mainstream liberal vote on the court. Disappointed liberals may have to focus less on courts and more on politics and the legislative process--but that’s not necessarily a bad thing.

Gordon Silverstein is an assistant professor of political science at the University of California, Berkeley. His latest book, Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics, was published by Cambridge University Press in February.

By Gordon Silverstein