Scalia was right. Well, he got two out of three correct.
Justice Scalia has maintained since Justice Alito came on the bench that the next nominee to the SCOTUS would be female, Hispanic, and Protestant. Sotomayor is Catholic, so Scalia just missed the triple play.
But Scalia was mainly in the right and had his finger on the pulse of a necessary political step by the Obama administration. There was a need to nominate a woman, for sure. A Latina nominee allows Obama to nominate an unrepresented minority to the Court. And Obama also had to nominate someone who had an actual chance of getting confirmed by the Senate. The Harriet Myers debacle showed that women will not be confirmed on their gender alone.
Sotomayor’s nomination to the district bench by George H.W. Bush (another of his questionable appointments), and to the Second Circuit by Bill Clinton, all speaks to some vague notion of bi-partisanship that Obama likely wants to showcase. The reality, however, is that Sotomayor is a consistent liberal, with some questionable tendencies.
The end result to a Soto-Souter switch will be a different face inhabiting his chair. Sotomayor will remain the firm liberal vote that Souter was, with occasional forays into the more conservative camp. The only question that remains with Sotomayor is just how liberal will she be? Some accuse her of being a racist. We have all seen or heard of her predilection for legislating from the bench.
And, yes, she is full of empathy–we get it. It remains to be seen, however, just how far her empathy will take her from the issues, from being the blind eye of the law. By the time cases reach the SCOTUS, they are all about pure legal issues far removed from any notion that real people are the parties involved. To acknowledge that decisions have consequences and people will be affected by a decision is one thing. To base your decision on the empathy you feel for a particular litigant is not justice.
Sotomayor is perhaps, like Souter, a sleeper choice. By that I mean that like many of the Republican appointees of recent memory–Souter, O’Connor, Kennedy–she may too morph into something that the President did not foresee when he nominated her. In this case, I think Sotomayor may prove to be much more liberal than we think if she is confirmed to the Court. It would be for her the Supreme Legislative Bench and a comfortable position for her for the next twenty or more years. Her confirmation would also be a sad testament to how far we have strayed as a nation from our founding principles and our love for a nation of laws, not of men.