Anyone who has been paying attention knows that Judge Sonia Sotomayor is (was?) a (the?) front-runner for Justice Souter’s Supreme Court seat. But along came Jeff Rosen, who questioned the choice of Sotomayor on the grounds that (1) she allegedly does not have the intellectual horsepower for the job, and (2) she’s a bully on the bench and difficult to work with.
Rosen’s was truly the blog post that launched a thousand blog posts. She is brilliant! She isn't brilliant! She might be brilliant! She is a great judge! She’s an average judge! Rosen has a conflict of interest and an agenda! He’s a racist! He’s sexist! And so forth.
This is all a sideshow. Whether Judge Sotomayor is brilliant or not is irrelevant, because she is clearly very, very smart--smart enough to do the job of a Supreme Court Justice. This is a job that requires great intelligence, but not brilliance; and there is no evidence that true brilliance correlates at all with being a good Supreme Court Justice (whatever your definition of "good").
As for the questions about her temperament, that's also a sideshow. The Second Circuit is a uniquely collegial court and one that coddles lawyers. The fact that she might rub some judges, clerks, or lawyers the wrong way -- even if true -- says absolutely nothing about how she would fare on the Supreme Court.
In truth, Judge Sotomayor is qualified in every way for the Supreme Court.
But I predict that Obama will not nominate her, and here's why. It seems to me that if Obama wants to push the Court in a liberal direction, this is his best opportunity to do so. (Although it is true that he will be replacing one relative liberal with another--and therefore cannot easily move the Court--it does matter who the replacement is. Heck, otherwise we could just avoid appointing anyone to the seat and just add a vote for the liberal side of every case.) He has a near filibuster-proof majority in the senate, and even if Justices Stevens and/or Ginsburg step down, who knows what will happen in the next senate election cycle? To push the Court, he will either want to appoint someone who will articulate an unabashedly liberal vision of constitutional and statutory interpretation or a moderate liberal who is a skilled coalition builder (or at least who can help to blunt a conservative ruling).
Thus, the question becomes whether Judge Sotomayor is the best person suited for either of these roles. And the answer, in my opinion, is no. Judge Sotomayor has not shown herself to be the unabashed liberal lion who could influence the Court, lower courts, lawyers, and law students for generations to come. Mind you, this has nothing to do with brilliance. She could very well be brilliant, but she is a moderate liberal in the mold of many Clinton appointees.
Similarly, I have not seen evidence that she has the knack for forming coalitions, swinging judges, or blunting the impact of conservative majorites. And this has little to do with judicial temperament. She could be loud on the bench or quiet, reserved or aggressive. Regardless, she just does not seem to have taken the role of coalition-builder or conservative-opinion-blunter.
To be very clear, none of this is a knock on Judge Sotomayor. She might make an excellent Supreme Court Justice: smart, insightful, careful, fair, etc. But I do not think that she is the right person for this particular slot, given the context and circumstances.
And this is why I believe that President Obama will not appoint her.
All of this is by way of prediction rather than recommendation.
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