On Sotomayor

A noble pick that highlights a political flash point. Plus, California's shame.
By EDITORIAL  |  May 27, 2009

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There is a pleasing symmetry to President Obama's nomination of federal appeals court judge Sonia Sotomayor to the United States Supreme Court.

The first African-American president has appointed the first Hispanic justice, who, if confirmed, would become only the third woman to serve on the high court. In the process, Obama has not only enabled history, he has aligned himself with the nation's fastest-growing bloc of new voters, thus increasing the peril of Republican opposition.

Sotomayor's nomination, considered in tandem with the appointment of Obama's onetime arch rival, Hillary Clinton, to secretary of state, speaks volumes to how Democrats view the role of women in public life. Compared with the Republican vice-presidential candidate, Sarah Palin, Sotomayor represents solid Democratic substance versus hollow Republican symbolism.

With the Democrats controlling the Senate by a seemingly filibuster-proof margin, Sotomayor should be confirmed — if not by the end of this legislative season, then certainly by October in time for the court's next session.

That is not to say that her confirmation will be a walk in the park. Anti-choice partisans will undoubtedly oppose her nomination, and yet be stymied by the fact that, in her 17 years on the federal bench, few abortion-related cases came her way.

Some on the left may roast her for upholding President George W. Bush's ban on federal funds to overseas agencies promoting choice. That Obama has reversed Bush's shortsighted policy will take some of the sting out of such attacks.

In most spheres, Sotomayor's reliance on precedent should serve to reassure all but the most ideological of the crazies.

It will be interesting to see if the Catholic card gets played, since, if confirmed, she will become the sixth member of that faith to join the current nine-member panel. Compared with the ultramontane views of Justices Clarence Thomas and Antonin Scalia, and the more typically right-wing views of Justices Samuel Alito and John Roberts, however, Sotomayor will be a breath of fresh air.

That said, this appointment will expose at least one of the cultural contradictions of Obamaism.

During the campaign, Obama reassured moderates when he said that, while he favored affirmative action, he did not favor it for children, such as his own, from privileged backgrounds. This bit of common sense telegraphed that Obama was capable of seeing the shades of gray in an issue that is usually portrayed in black and white.

As a member of a three-judge federal appeals court, Sotomayor upheld the city of New Haven, Connecticut's decision to invalidate a fire department promotion test because no African-Americans qualified. A group of high-scoring white firefighters and a Hispanic were, as a result, denied promotion. The case is currently pending before the Supreme Court. Complicating the already charged atmosphere surrounding this case is the fact that one of the white firefighters, Frank Ricci, is dyslexic and undertook almost heroic preparations to attain a qualifying high score.

This case is one in which the shades of gray are intensely painful. It promises to provide the high drama and conflict that has come to characterize recent Supreme Court confirmation hearings.

Sotomayor has twice been cleared by the Senate, first when Republican George H.W. Bush appointed her to the federal trial bench and later when Democrat Bill Clinton elevated her to the appeals court. Unless something unexpected surfaces, she deserves prompt approval.

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