Liberal, Latina, and the Law in Limbo

Let’s be honest with ourselves: the nomination of Sonia Sotomayor does not come as a complete surprise. At the very least, we expected a woman – and minority representation fit the bill quite nicely. Enter Sonia Sotomayor.

I won’t take a scathing position toward her nomination quite yet. Do I think there are better qualified candidates for the position? Absolutely. Was this motivated by politics? Of course. Will this tilt the court further to the left? Maybe. At the very least, she will be a consistent liberal vote. At the worst, she’ll be far more left than the other justices. Given that Obama could have opted to nominate a far more liberal judge to the bench, I breathe a slight sigh of relief for the moment. In the grand scheme of politics, he just replaced one liberal for another.

But this was to be expected. Elect a liberal president, expect liberal judicial appointments.

Right now, I am reserving some judgment toward Sotomayor – she is somewhat of a question mark on beliefs toward life, marriage, and the like. Much of this will probably come out during the confirmation process. I’d like to think that the “Catholic” label might hold a modicum of meaning, but given Kennedy’s vote on social issues (or Stevens’ “protestant” designation) the religious label is not dispositive of actual beliefs.

That being said, do we really think that Obama would nominate a pro-life, pro-family justice to the bench? No. Still, George H. Bush appointed Souter who later became a decidedly liberal vote. Reagan appointed Kennedy who opted not to overturn Roe v. Wade when given the opportunity. Another major disappointment. Maybe it’s not unreasonable to hope that Sotomayor will be Obama’s unexpected gift to conservatives. But the unknown about Sotomayor cuts both ways. She may be far more liberal (or empathetic) than everyone realizes. She already views the appellate position as a pulpit to promulgate policy. To what extent will that color her opinions? Liberals may yet have a reason to be more enthusiastic in years to come.

But regardless of what happens with her, Obama is still looking looking at making history with the probable opportunity to nominate two more justices before his term is complete: Stevens and Ginsberg. Stevens just turned 89 last month, and Ginsberg was recently diagnosed with pancreatic cancer. These two will be replaced with younger justices that will carry forth Obama’s legacy for another 20 years or more. The next conservative that is due up for replacement is probably Scalia, but he could probably wait eight or more years, health permitting.

And at this point, there is really not too much conservatives can do. Seven of the Republican senators who voted for Sotomayor’s appointment to the appellate bench are still around. Unless Republicans can manage to vote cohesively (and know when to pick a fight), this confirmation will proceed relatively smoothly.

For the time being though, we are left in a mildly uncertain limbo.

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