In the long history of the Supreme Court, biography is hardly destiny. The Court's chambers have been occupied by justices who have emerged from hardscrabble pasts yet possessed stunningly little empathy for those still mired in impoverished conditions. Clarence Thomas, to name the most obvious example, may have come from crushing poverty in Pin Point, Georgia, and triumphed over the longest odds--but that experience laid the basis for a body of work marked by bitterness, anger, and ideological rigidity.
When President Obama began considering David Souter's replacement, he spoke about the need for a justice who has "a sense of what real-world folks are going through."This never struck us as a very salient qualification for the job- -or rather, not nearly as salient as, say, intellect or judicial philosophy. After all, Obama's standard would have led him to pick Thomas over Souter, a hermit who prefers spending his life buried in history books.
But Sonia Sotomayor, the judge Obama ultimately selected to fill Souter's chair, has an up-from-the-Bronx story that is very inspiring and, we hope, relevant. The Roberts Court has tilted so heavily in favor of business that a healthy dose of empathy for the powerless (not to mention sympathy for regulation and antitrust laws) would be a very good thing, indeed.
To state what should be beyond dispute: Sonia Sotomayor is qualified for this job and should be confirmed. Her opinions may be unflashy and technocratic, but the variety of her experiences--as a trial judge, appellate judge, and commercial litigator--seems to have endowed her with a sense of both the power and limits of the courts. Like David Souter, she appears to be a moderate liberal, which essentially means that she will preserve the Court's ideological status quo. And we hope that she evinces the same sort of growth that marked Souter's tenure.
When Barack Obama discussed his calculus for selecting a Supreme Court justice over the course of the campaign, he raised expectations that he would appoint a justice who might transform the Court. Earl Warren, he intimated, would be the platonic ideal that he would seek to replicate. There was a hope that he might fill what Cass Sunstein has called the "absence of anything like a heroic vision on the Court's left."
Despite Sotomayor's merits, there's little reason to believe she will be that kind of justice. There's also no evidence that she has great interest (or acumen) in intramural politicking of the sort that might nudge Anthony Kennedy toward the liberals and away from the conservatives. (While many have testified to her interpersonal skills, some lawyers who have argued before her have also raised questions about her temperament, as Jeffrey Rosen has reported.) Nor does she seem to have any interest in becoming a liberal answer to Antonin Scalia. As a judge, she has steered clear of staking out bold stances on social issues. And her record has few traces of economic populism--although one can locate some encouraging signs in scattered rulings-- a fact that helps explain why the Chamber of Commerce has failed thus far to join the conservative base in rallying against her.
The president's political rationale for the pick is clear enough. There's not much in the Sotomayor record that will likely generate heated opposition-- and lead to the kind of bruising confirmation battle that would siphon political capital from the coming legislative fights over health care reform and cap and trade. As conservatives began to make the case against her this past week, their opposition, for the most part, was recited with little feeling and dampened by their sense of futility. What's more, to point out the obvious, Sotomayor is a symbolically potent pick that could further cement the increasingly firm place of Latinos within the Democratic coalition.
Supreme Court nominations have turned into such intense partisan scrums that they have distracted and derailed important conversations about the qualifications, intellectual style, and temperament that yield the most effective justices. Barack Obama will likely have other opportunities to put his mark on the Court. And we hope that, in the aftermath of Sotomayor's confirmation, liberals can engage in a robust debate about what they would like to see from Obama in his next turn at the plate. Conservatives transformed the federal courts by appointing the most determined and able conservative intellectuals in the country. Liberals who want to take back the courts can't afford anything less.
By The Editors