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On Sotomayor: Keep Criticisms Philosophical

President Obama has picked a veteran jurist with solid credentials. Sotomayor is probably the least offensive person Obama could appoint to the Supreme Court. It will be interesting to see what information comes to light during the confirmation process, but at first glance this pick looks like a strong one. Cynics will point to identity politics being behind Sotomayor’s selection, and there is probably truth to that. But this doesn’t mean the GOP should fall into Obama’s trap.

Criticising Obama for playing racial politics ignores the real issue, whether Sotomayor is unqualified for the Supreme court and if Sotomayor’s judicial philosophy is contrary to conservative legal thinking.

The answer to the first question is yes, Sotomayor is more than qualified for the position. She may not be the most qualified, but her resume is still impressive. Private practice, Asst. District Attorney, Eighteen years as a judge, 10 years as a law professor/lecturer.

Now, her judicial philosophy is harder to pin down. She doesn’t appear to adhere a specific legal dogma. Is she liberal? Probably. Is she a strict constructionist? Probably not. Will her presence on SCOTUS turn the court into an extension of the legislative branch? Not any more than it is. Sotomayor won’t swing the court hard one way or the other, she’s no Ginsburg (a former ALCU lawyer and unabashed liberal advocate). Ginsburg dedicated her legal life to righting what she thought were wrongs. Sotomayor, to me, is just a judge trying to be a good judge.

There really shouldn’t be much opposition to Sotomayor. Any opposition needs to focus on substantive issues related to judicial philosophy and the role of the judiciary in the public policy process. The public should understand that Republicans oppose activists judges and that they have reservations about Sotomayor. That’s a fair criticism.

Focusing on the issues and making the case for originalist philosophy should be the GOP’s strategy. In the end, the Republicans should give Sotomayor the benefit of the doubt. She is not the appointee to filibuster and doing so would be a constitutional tragedy and a PR nightmare.


6 Responses

  1. I agree that there is no reason for GOPers in the Senate to fight to the death over this nomination, but that doesn’t mean they can’t ask her a few tough questions that I believe the American people deserve to hear answered and I believe are pertinent to the nomination process.

    What I find most interesting about this nomination is that we know Obama wouldn’t have nominated someone he believes would overturn Roe v. Wade, but this judge happens to consider herself a member of the Roman Catholic Church.

    Now we have organizations on both sides of the abortion debate concerned about her appointment.

    Do you think Obama specifically chose her bc of her religious background in an effort to make her likely position on the Roe v. Wade issue relatively ambiguous to the general public, all the while knowing he has her in the bag to preserve the current makeup of the court over that decision?

    Of course, I am posing that question as a Catholic who believes that any true Catholic in the judicial arena would recognize Roe v. Wade as a flawed decision. But assuming she IS a judge that would preserve Roe v. Wade (and we know she is) and also Catholic, I want to know how “Catholic” she really is. And I think that is a fair question to ask during her confirmation hearing.

    Also, I think it is totally fair game to grill her on any prior decisions she has made that have demonstrated she is more likely to legislate from the bench than she is to interpret the Constitution in a strict, constructionist manner.

    She may like to think of herself as a Catholic, but Antonin Scalia, John Roberts or Sam Alito she is not.
    Antonin Scalia she is not.

    • I think most legal scholars are skeptical of the reasoning behind the majority opinion in Roe. I’ve read the decision a few times and it suffers from huge logical gaps. Even Justice Ginsburg has some misgivings about Roe. The right to an abortion is simply conjured from thin air.

      However, I will seperate Catholicism and the Law. Catholics must oppose and be abhored by abortion. But legal scholars can differ about the legitimacy of a SCOTUS decision. A Catholic Supreme Court Justice will still understand the right of a democratic state to legalize gay marriage through a vote or an amendment to the Constitution. It would not be right for Catholic judges in Maine, Connecticut or Vermont to reverse gay marriage in those states unless the Constitutions of those states had specifically addressed marriage.

      A Catholic doesn’t need to have a particular legal philosophy. But we must have certain beliefs related to moral issues like Abortion.

      Was Sotomayor just Obama playing politics? Probably. He’s trying to capture Catholics, Hispanics and Women for the Democrats. He wants Evangelical Christians too (thus his outreach to Rev Warren). I think everything Obama does has a political angle.

  2. He does have quite to political machine working all the angles for him, doesn’t he?

    Good points on the Catholicism and Law.

    • He’s not perfect. There’s more style than substance to him. He’s turning himself into a caricature. Whether this will be enough to build an opposition movement, I don’t know.

  3. Reasons why I have a hard time taking the GOP seriously:


    • reasons why I have a hard time taking you seriously:

      “I graduated from a top tier university in May 2008…”

      Uh, aren’t the top 100 schools ‘top-tier’? Color me unimpressed, sweetheart. The worst years of the GOP Congress didn’t abort the economy in the same way that our Father-Leader Obama has done. So, mayhaps your snarky statements ought to be directed where it matters.

      Or maybe you do things different since you did graduate from a top-tier.

      yea, I’m bored and picking fights, what of it?

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