Sotomayor An Unknown Quantity On Executive Power Issues

Back in the dark ages of, say, yesterday, when I had settled into the (totally wrong) mindset that today's nomination announcement was going the way of Elena Kagan or Diane Wood, I was most interested to see how the choice impacted the executive powers that Obama has largely held over from his predecessor. It is the argument of the Three-Dimensional Chess set that Obama intends to rollback the Bush power-snatching in a permanent -- or at least difficult to reverse way -- the theory being that the courts would establish firmer and lasting parameters for executive power than an executive order or personal decision would.

It's not an argument I find terribly convincing, but the choice between Kagan and Wood was definitely a choice between an endorser and a critic of unitary executive power, respectively. The question now is, which way is Sotomayor likely to go? And the answer is: nobody really knows! Charlie Savage sums it up thusly for the Washington Post:

By contrast, one person near the top of Mr. Obama's short list -- Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit -- has never worked in the federal executive branch and sits on a court that hears few executive power cases.

And, as often as executive power controversies intersect with the prosecution of the war on terror, that's really just the tip of the iceberg. As Savage shrewdly points out, "the broad powers Mr. Obama has employed in the economic crisis, like his virtual takeover of the American auto industry, could generate a new category of cases that would turn on how much deference the court gives to the executive branch."

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