President Obama’s selection of Sonia Sotomayor as his first nominee to the Supreme Court certainly is good politics. Given Judge Sotomayor’s gender, ethnicity, and Roman Catholic background (she graduated in 1972 from Cardinal Spellman High School in the Bronx), the President tipped his hat to three important voting constituencies that favored him much more than John Kerry.
Good politics, however, does not necessarily ensure a good Supreme Court pick. Take President Eisenhower, for example. His first nomination (as Chief Justice) was a political rival for the 1952 Republican presidential nomination, and he later picked a New Jersey Catholic to curry the favor of northeast voters in the 1956 election. After Eisenhower left office, a reporter asked him whether he had made any mistakes as president. "Two," the former president replied. "They are both on the Supreme Court." Eisenhower’s selections of Earl Warren and William Brennan led to an unpopular explosion of criminal rights.
Other examples abound, including the selection of the “stealth nominee” whom Judge Sotomayor will replace if confirmed by the Senate. At the press conference announcing David Souter’s nomination, President George H.W. Bush said five times that the future Justice Souter was "committed to interpreting, not making the law." In promoting David Souter to conservatives, White House Chief of Staff John Sununu described his fellow New Hampshire citizen Souter as a “home run,” which conservatives foolishly interpreted as a “home run” for their team.
With this pick, it is unlikely that President Obama is repeating the mistakes of these Republican Presidents. First of all, the President is not politically indebted to Ms. Sotomayor, and although he seeks to curry favor with the fastest growing element of the electorate, he is not selecting a conservative Hispanic. Perhaps most importantly, the President has a very healthy majority of fellow Democrats in the Senate, and therefore does not have the problem usually confronted by Republican Presidents (while Republicans have enjoyed the White House for 36 of the past 57 years, they have controlled the Senate for only 14 of those years).
With confirmation assured, President Obama nevertheless will seek votes from Republican senators so he can claim bipartisan support similar to that achieved by President Clinton (the Senate approved Clinton’s choices of Ruth Bader Ginsburg and Stephen Breyer by votes of 96-3 and 87-9, respectively). Such bipartisan support is unlikely, however, since Republicans in the Senate cannot simply “roll over” like they did for Ginsburg and Breyer after the pitched confirmation battles for Chief Justice Roberts (confirmed 78-22) and Justice Alito (confirmed 58-42). Rest assured that the confirmation process, however, will not be as rancorous as that of Roberts and Alito, since the Republicans on the Judiciary Committee have no one comparable to Sen. Charles Schumer.
Republican Senators seeking cover for voting for Sotomayor should not look to the fact that the first President Bush nominated her to the federal bench. First of all, historically the selection of federal district court judges has been the prerogative of the U.S. Senators from the state where the vacancy exists. The White House and the Department of Justice’s Office of Legal Policy review the recommendations, of course, but given the nature of the work (the overwhelming majority of the 338,000 criminal and civil cases filed in 2008 are routine in nature) and the fact that few of these cases (less than 200, and some of these are appeals of State Supreme Court decisions) actually go to the Supreme Court, great deference is given to the recommendation of the Senators.
Moreover, any stamp of approval by the first Bush administration for Judge Sotomayor is particularly dubious because of the “New York Rule.” In New York (as well as other states that follow this practice), the two U.S. Senators divide their judicial selections with the U.S. Senator of the same party as the occupant of the White House getting three judicial picks and the Senator of the opposing party getting the fourth pick. The two U.S. Senators from New York during the first Bush administration were Republican Al D’Amato and Democrat Daniel Patrick Moynihan. Given Judge Sotomayor’s politics, she was most likely the pick of Senator Moynihan rather than Senator D’Amato, and the administration of George H.W. Bush merely complied with this recommendation.
Given the depleted ranks of Republican senators and their natures (which white Republican male senator from the South or West will want the role of being harsh to a Hispanic female?), the confirmation of Judge Sotomayor will not replicate the battles for Robert Bork and Clarence Thomas. Another reason for concluding that Sotomayor is a good political choice for President Obama.
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