The opportunity on Sotomayor

In all the commentary on Barack Obama’s appointment of Sonia Sotomayor to the Supreme Court, the most fractious concerned how the Republicans should react to it.  Some demanded an all-out war to block Sotomayor’s confirmation; others advised surrender in order to appease Hispanic voters.  Both miss the target this appointment provides, which is not really Sotomayor herself, but the man who made the appointment.

Unless the GOP gets Democrats to cross the aisle on a filibuster, they have no chance of blocking Sotomayor from replacing David Souter.  She doesn’t present that kind of extraordinary problem, though; she has clear qualifications to reach the Supreme Court.  She is not, as Karl Rove suggested yesterday, a Harriet Miers for Obama, as Miers never had a federal bench appointment, let alone 11 years on an appellate circuit.  However, Rove isn’t entirely incorrect either, as a look at her record makes it very difficult to demonstrate that she was the most qualified option for the court, or even remarkably qualified.  As Damon Root points out in Reason, her record is quite worrisome not just for bias, but also for competence:

Last month, the Supreme Court heard oral arguments in the case of Ricci v. Destefano, which centered on charges of reverse discrimination at the New Haven, Connecticut fire department. In 2003 the department administered a test to fill 15 captain and lieutenant vacancies, but when the results came in, no African Americans made the cut (14 whites and one Hispanic earned the top scores). In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work.

Ricci’s suit was initially thrown out at the district court level, prompting an appeal to the Second Circuit. At that point Sotomayor joined in an unsigned opinion embracing the district court’s analysis without offering any analysis of its own. This prompted fellow Second Circuit Judge Jose Cabranes—a liberal Democrat appointed by President Bill Clinton—to issue a stern rebuke. “The opinion contains no reference whatsoever to the constitutional claims at the core of this case,” Cabranes wrote. “This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

It’s an important point. Ricci gets at the very heart of the debate over whether the Constitution should be interpreted as a colorblind document. As the liberal legal commenter Emily Bazelon noted at Slate, “If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes’ ire, and he hung a big red flag on the case, which the Supreme Court grabbed.” Given that the Court is likely to side with Ricci and his fellow plaintiffs, Sotomayor’s silent endorsement of New Haven’s reverse discrimination is certain to come back to haunt her during her confirmation hearings.

This is the big risk that Obama took in selecting Sotomayor, and it prompts some questions as to why he took it.  The current court, including Souter, has already heard oral arguments on this case.  They should rule on this before the end of their current session, which will come next month.  If they overturn Sotomayor, that will emphasize both her incorrect decision on the merits as well as a lack of intellectual curiosity, an issue raised by her colleague Judge Cabranes.

A reversal on Ricci will raise the issue of the several reversals Sotomayor has received over her 11 years on the 2nd Circuit (the Washington Times says she bats .400 at the Supreme Court — not a confidence builder).  The Supreme Court has reversed her at least four times already, at least one of those a unanimous 8-0 reversal, which makes her look either more liberal than anyone currently on the court or less competent.  One of the times the court upheld Sotomayor, the majority scolded her for misrepresenting the statute in her opinion.

With this potential Sword of Damocles hanging over Sotomayor, why did Obama pick her?  She’s qualified, but that can presumably be said of any of the judges on the appellate courts.  It’s a bare-minimum argument, one that doesn’t answer why she specifically got chosen.  The answer is pretty obvious; Obama wanted a woman and a Hispanic, and Sotomayor’s allies lobbied hard enough to put her on top of the list.  Obama cared much less about judicial excellence than he did about appeasing demographic blocs.

The Republicans have an opportunity with Sotomayor that doesn’t involve knocking her off the court.  They have an opportunity to use the hearings to show Sotomayor as a routine appellate jurist with a spotty record who got elevated to this position as an act of political hackery by a President who couldn’t care less about his responsibilities to find the best and brightest for the job.  Like many of Obama’s other appointments, it demonstrates a lack of executive talent and intellectual curiosity on his part.  This appointment makes an argument for more Republicans in the Senate after the midterms, if for no other reason than to force Obama to start putting a little effort in making his nominations.

Update: Commenter Sesquipedalian notes that the stat on Sotomayor’s reversal rate may not really be all that significant:

Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively.

Perhaps the baseball analogy works better than first thought, eh?  Anyway, I’d still like to know what Alito’s reversal rate was at the SC, and I haven’t seen that yet.  The nature of the reversals, especially the 8-0 smackdown, will probably be more significant than the numbers themselves.