Sotomayor

SCOTUS appointee announced

First a couple of ground game arguments. Every time there's an appointment to be made at the highest levels, there often comes up these arguments that "we should appoint a (insert historically oppressed minority/female)". These arguments are dismissible in the point of finding "the most qualified candidate". And that's fine. The problem has been that there has rarely been a determined search to find "the most qualified candidates" and that this results in people picking familiar faces. The second problem is that to all political appointments, there is a political dynamic. And therefore the question of whether to appoint a woman or a Hispanic (and in this case, both, and one who grew up from a poor section of the Bronx as a child of immigrants to boot) to any post is potentially politically useful. That has to be accepted just as the argument that any candidate should be "the most qualified" available. Whatever that means. And picking someone from two more divided political voting blocs (poor immigrants and women) while letting the GOP try to figure out ways to attack her record without looking like a collection of racist misogynists is a political move of some worthy consideration.

Second major problem: the average person's political involvement in the Supreme Court only surfaces at the time of some appointments. Even this is tenuous at best. Most people are dramatically unfamiliar with court rulings and the value of them as a Constitutional force, for good or ill. The Court itself seems to have cultivated a sense of removal and cloak of mystery around it (though this is hardly true to people who follow it with some scrutiny). The people who are picked to serve on the highest bench are often unknown quantities to most Americans, their decisions only rarely significantly known and studied, and their ideologies always measured in a left-right dynamic that leaves much to be desired (particularly with regard to use of state authority and civil rights). Students of law or followers of the legal realm even are often only vaguely associated with each prospective candidate. The general public's exposure to judicial philosophy and the scrutiny of a few selected speeches or written decisions through Congressional hearings is either cherry-picked at best or a woefully inadequate understanding of the underlying theories at worst. With so much disinterest and misinformation, it is understandable that only a few core issues would emerge as worth pointing toward for each prospective judge for the general public. In this matter, we will find very little to interest opponents of say, legalized abortion, simply because it would be unreasonable to suggest that a "liberal" be replaced with an opposing ideological balance by a "liberal" administration. So a protracted grilling over some sort of "litmus test" on abortion is unlikely to resonate or be an effective strategy.

Of particular note to most casual observers is the decision on the New Haven firefighter case (essentially involving Affirmative Action). But so far as I can tell, she didn't actually add much to discuss over that particular case, merely agreeing with a previously adjudicated position from a lower court. It was sort of like punting on third down. The case itself came up in the Supreme Court case load this past session, mostly as a result of there being a rather basic going over in these lower courts. As a result, it would be useful to see what her basic judicial philosophy would be on things like civil rights and affirmative action, simply because the most recent and famous case she handled on those issues she really didn't say anything.

We can imagine that she has a particular viewpoint on labour rights, from the baseball strike (it is unfortunate however that baseball keeps dragging itself in government focus). And that this viewpoint is somewhat at odds with many conservative commentators (and economists). But this seems like the only significant point of contention that we might enter into this process with a level of certainty over. There's the insignificant but politically hazardous: "Court of Appeals makes the law" quote to get exercised over, but this is sort of like atheists tweaking the noses of religious fundamentalists. Court figures do in a way determine the law by deciding whether a law is functional, applicable, and operates fairly and within the boundaries that our legal system requires. That isn't "judicial activism", certainly not of the sort that the phrase "judicial empathy" espouses to most conservatives. So I don't see what the problem here would be.

538 already looked her over for the previous Congressional confirmations for her Appeals seats and found that a couple prominent GOP members already voted for her in the past (Hatch in particular since he sits on the Senate Judiciary committee). It will be interesting to see if they do so now, or why they might change their minds. But it doesn't seem like they'll be able to throw up enough roadblocks to stop a successful nomination campaign anyway. They may be better off politically not running with their accepted party line of "no" and trying to figure out a way to support this woman, or at least, not be seen as directly opposing her.

Instead of flailing about with my own marginally improved data set of conclusions, I'll simply refer any interested party to a couple people who seem more interested in following legal decisions with vigorous tenacity and who seem to be roughly in my ballpark on ideological perspectives.
Volokh

Bazelon