News of President Obama’s nomination of Judge Sonia Sotomayor to replace Justice David Souter on the United States Supreme Court has not been well received in conservative circles. By all indications, Judge Sotomayor appears to be a results-oriented judge who views the judiciary as a super, policy-making legislature — precisely the type of judge conservatives like me abhor.
From where I’m standing, a Justice Sotomayor is a foregone conclusion.
I wonder if that might not be a good thing.
Might she . . .
Consider the realpolitik of Supreme Court politics — justices sometimes move right or left in reaction to other justices as much as the law itself. In her excellent “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,” Jan Crawford Greenburg argued that has historically been the case with justices who were untethered by a distinct judicial philosophy. Justice Blackmun moved left because of his antipathy for the unpopular Chief Justice Warren Burger. A new Justice Sandra Day O’Connor moved right in the early years because of her distrust for the wily Justice William Brennan, then left again in her later years because of her dislike for Justice Clarence Thomas’ judicial philosophy.
drive him . . .
Say what you will about Justice David Souter’s predictable liberalism, but there can be no doubt among the intellectually honest that he was a fair-minded, thorough and thoughtful justice. He also seemed like a likable — if slightly quirky — fellow. One need only listen to Supreme Court oral arguments on oyez.org to discern that. Justice Souter’s reliable presence on the left could have only attracted the philosophy-free O’Connors and Kennedys.
closer to them . . .
O’Connor’s gone now, so Kennedy is the only justice left unburdened by a distinct judicial philosophy to guide him.
A Justice Sotomayor may very well guide him — to the right.
or even THEM?
From her speeches and the few words she muttered in accepting President Obama’s nomination, she does not strike me as a particularly likable gal. She appears to be an unabashed, results-oriented jurist — not a trait likely to appeal to Kennedy, who prides himself on endeavoring to decide cases on their merits. Fellow Clinton appointee Jose Cabranes criticized her one-paragraph opinion in Ricci v. DeStefano because it “contain(ed) no reference whatsoever to the constitutional claims at the core of (the) case” and its “perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” (More.) That’s judge-speak for “you gotta be kidding me” and suggests that Judge Sotomayor may not have been particularly well respected by her Second Circuit colleagues. Judge Sotomayor’s JLo-ish “just a girl from the Bronx” schtick may not wear well with Kennedy, who, by all accounts, perceives himself as quite the Aristocrat. Of her five Second Circuit decisions that have been reviewed by the Supreme Court, she has garnered just 11 of a possible 44 votes (more), so she doesn’t appear to be particularly persuasive, either. And at the risk of sounding mean, she isn’t likely to draw Justice Kennedy on the basis of her dashing good looks. (A Justice Granholm, on the other hand . . . )
Most commentators agree that a Sotomayor-for-Souter swap won’t alter the balance of the court much. I’m not so sure. The balance may tip. Just not in the direction President Obama would like.
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