I have a few thoughts on the timing and initial reaction to Sotomayor’s nomination as well as the issues emerging as the focus of her nomination. As a preliminary matter, I was pleasantly surprised to see that Republicans, including Sen. Mitch McConnell and Sen. Orin Hatch (who voted to confirm her for the Second Circuit), were noteworthy in their restraint. They have suppressed the urge to rush to the microphone with words of praise or to concede that anything (either the outcome or timing) is preordained. The country, the Senate, and the media will learn a lot about her in the weeks to follow. And it would be utterly inappropriate to prejudge anything at this stage.

From the White House’s perspective this tells me two things. First, they can’t wait to change the subject from Guantanamo and North Korea to soemthing else — and all the better to pour on diversity and empathy chatter that will delight the president’s liberal base. Second, the president is not concerned about an intellectual powerhouse who can lure Justice Kennedy to “his side.” He thinks there will be plenty of time to tip the court with future nominations. He wanted a constituent-pleasing, safe “liberal” vote on the court. (As Charles Krauthammer points out, nothing so excites the Democratic Left as a heaping of identity politics.) So far that’s what he has got.

But moving on to the issues Sotomayor’s nomination raises, Obama has also taken on quite a battle. First, his nominee makes no bones about her belief in the Court as an engine of social change. For those moderate and conservative Democrats in the Senate this may prove to be a “hard” vote.  Second, she has pushed for racial quotas both in an advocacy role and on the Court. Third, her reversal rate suggests she is a judicial extremist who differs with the Supreme Court on a wide range of issues.

In sum, as Stuart Taylor explained, she is the personification of identity-politics. In reviewing what will be a much picked over speech by Sotomayor lauding Latina judges, Taylor observed:

Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

The president is entitled to nominate whomever he wants. What is stunning is that he wanted someone who throughout her professional life has repudiated the sort of post-racial message that was the basis of his candidacy. Presumably, the president knows this and is pleased to leave his mark on the bench — an act that will resonate long after voters and media mavens forget that this was a presidential candidate committed to ending the politics that divided rather than united Americans. Now we know precisely what “post-racial” means. Strangely enough, it looks an awful lot like the racial politics that has pitted Americans against one another for decades. I was hoping for change.

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This entry was posted on Tuesday, May 26th, 2009 at 3:53 PM and is filed under Contentions. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.