So, over Memorial Day, the betting line seemed to settle on Judge Diane Wood being something of a sure thing. But guess what? EVERYTHING YOU THOUGHT YOU KNEW ABOUT OBAMA'S SUPREME COURT PICK IS ABOUT TO CHANGE. Very slightly! Instead of Wood, it appears that Sonia Sotomayor shall be the nominee, guaranteeing us of the one thing we know the media can cover well: a big shiny melodramatic political battle royale in which tempers rage and garments are rent but whose outcome is already basically predetermined, barring the last minute disclosure of a videotape of Sotomayor setting kittens on fire.
In the case of Sotomayor, I am already hearing on MSNBC that the Judge makes both Democrats and Republicans "excited," and that Republicans will have a lot of "red meat" to chew on, but that in the end, they have a "zero chance" at preventing the nomination. But that's okay! What else were you planning on doing this summer.
As it happens, criticism of Sotomayor had already begun in earnest. Jeffrey Rosen's New Republic article, filled with anonymous sources, cropped quotes, and an admitted unwillingness to do much more beyond lightweight legal analysis, formed the Ur-text from which the first wave of criticism sprung. To wit: Sotomayor was a not-smart person who nevertheless went to Princeton, and a hotheaded Latina whose ethnic hotheadedness seemingly carried none of the accepted, value-added ethnic hotheadedness of Antonin Scalia. Everyone went a little crazy after that was written, with the Atlantic's Marc Ambinder making the lunatic assertion that spitting the innuendo's of unnamed axe-grinders was the model of "respectable intellectual" centrism, and Mark Halperin idiotically worrying about what would happen to white people.
You're also going to start hearing about a videotape of Sotomayor saying the "court of appeals is where policy is made" and that she should never say such things on tape, and that proves she's a great big ol' activist liberal Judge liberally activizing all over the damn place. As usual, the people who talk about the tape have her comments precisely wrong. Here's a useful debunk:
There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.
But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.
If there is a legal decision of Sotomayor's that will receive attention, it will be the Ricci v. DeStefano case - an affirmative action case involving the New Haven fire department that's being reviewed by the Supreme Court and which could be overturned during this frenzy over Sotomayor. For what it's worth, Rosen brought up this decision in his piece and was forced to admit that "the extent of Sotomayor's involvement in the opinion itself is not publicly known."
Of course, as Mike Allen truthfully admitted, the opposition to Sotomayor would have basically been opposition to anybody. The GOP is in need of a good hook for base-rallying and fundraising. And that will be countered by an orgy of base-rallying and findraising on the other side. And Obama will likely welcome the fight because it may smooth the road for various pieces of his domestic agenda, like health care reform.
But there's another aspect to Sotomayor that likely holds appeal for Obama, in that her campaign mirrors his own - the rough shots are coming early and with grim ubiquity, much in the same way that Obama faced down his toughest stuff early in the campaign. He likely reckons that long before the nomination process reaches its conclusion, the case against Sotomayor is going to feel very played out.
And at this very moment, David Shuster is making my point, quoting an unnamed former Clarence Thomas clerk, who describes Sotomayor as a "liberal judicial activist in the first order who things her own political agenda is more important than the law." Jeez, unnamed former Thomas clerk! Don't blow your wad all at once!
UPDATE: Media Matters rounds up some of the initial reactions to Sotomayor:
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