Sotomayor is on the path to judicial confirmation. And barring any serious red flags, she will be confirmed. Scalia, of course, predicted this. Then again, most political pundits would have guessed the same. Female. Hispanic. Protestant – scratch that – Catholic. With a Democrat in the Oval Office, the addition of one more label trumps them all: liberal.
Her opening statement, I felt, was quite disingenuous. Her judicial philosophy: “fidelity to law.” The goal: “uphold the Constitution as a Justice on the Supreme Court.” Contrast this with her statement at Duke’s law school where the stated that appellate courts are where policy is made. Apparently, the distinction between applying the law and making the law is lost on Sotomayor. The Supreme Court is the final court where the impact – and consequences – of decisions reverberate through numerous generations.
Unfortunately for conservatives, there is little to halt the confirmation. Churchill remarked that “history is written by the victors”; this confirmation elucidates this truism quite well. Republicans failed to find the Achilles heel of a liberal justice. Granted, Sotomayor’s “wise Latina” comment provided fodder for a decent firefight; but without a spark, the fire fails.
Perhaps that spark could have been Ricci v. DeStefano, but outrage at Sotomayor’s decision is also seemingly feigned. I believe Sotomayor is an activist judge (see here), but I wouldn’t use DeStefano as the lightening rod to mount opposition against her. After all, four Supreme Court justices agreed with Sotomayor’s ruling. The case could have very well come out the opposite way had the Court’s composition been reversed.
This is not “que sera, sera”; I am not so disengaged to believe that. I recognize though that while Sotomayor’s confirmation is virtually inevitable, this is not the be-all-and-end-all. Frustrating yes, but remember, the Court’s makeup still has not changed.