Why is Judge S worse Than Judge X?

Though I am a Supreme Court watcher, I’ve been unable to invest myself in the debate over Judge Sotomayor. Is she my kind of jurist? Hardly. Asked to nominate someone this moment, I’d send Eugene Volokh before the Senate; given the ability to solicit advice I’d call Radley Balko, ask for a name, and try my hardest to get his choice confirmed, mostly to oppose executive overreach, law enforcement abuses, and eminent domain outrages.

Alas, I am unlikely to get a liberty-minded justice from President Obama. He is a popular liberal executive who enjoys a friendly Democratic Congress. So why bother getting all riled up about Judge Sotomayor? Odds are Pres. Obama is going to get his first choice—and even if she is defeated, a liberal justice is ultimately going to be confirmed. Is Judge Sotomayor a particularly troubling pick by libertarian and conservative lights, or is she a better gamble for the right than an as yet unnamed alternative liberal nominee?

I’m content to try my luck with Judge Sotomayor. I’d supposed for awhile that all noise to the contrary was basically reflexive posturing: Opposing Supreme Court nominations is just what the opposition party does. “Rather than stop Sotomayor, the Republican Party needs to lay the groundwork for Obama’s next Supreme Court appointment by testing effective lines of attack,” Reihan wrote.

Fair enough!

He went on to say:

Among conservatives, the emerging consensus is that Sotomayor is an identity-politics pick. It’s certainly true that Obama has gained considerable kudos by naming the first Latina to the Supreme Court. Yet this is a kind of politicking that Republicans have engaged in as well. Antonin Scalia, the most celebrated conservative jurist of our time, sailed through confirmation despite a decidedly controversial reputation as a brilliant intellectual bomb-thrower. His main asset was the fact that he was the first Italian American named to the Supreme Court, a constituency that Democrats were careful not to offend. Though greatly admired by many on the right, George H.W. Bush’s nomination of Clarence Thomas was widely seen as motivated by a desire to replace Thurgood Marshall with another African American. Absent the role of identity politics, it’s not obvious that Thomas would have been Bush’s first choice. Had the brilliant Miguel Estrada been confirmed to the D.C. Circuit Court of Appeals, one can imagine that he’d be sitting on the Supreme Court instead of Samuel Alito. All this is to say that the identity politics charge won’t stick. If anything, attacking Sotomayor as an “affirmative-action hire” will make Republicans look like bigoted bullies to Latino voters.


Let’s set aside politics, however, and talk about the substance of identity politics. I happen to oppose affirmative action, especially as our increasingly diverse, intermarrying, multi-ethnic society makes official color-blindness a prerequisite for social cohesion. Most legitimate aims of affirmative action could be achieved by targeting poor people anyway.

But it is irrational for the right to use racial politics as the most prominent lens to evaluate a Supreme Court Justice. The affirmative action fight is winnable in state legislatures and at the ballot box. Other issues that the right cares about are going to be decided entirely within the judiciary.

Then there is the overwrought alarmism explified by this Pat Buchanon column:

Down the path Sotomayor would take us lies an America where Hispanic justices rule for Hispanics, black judges rule for blacks and white judges rule for white folks.

Judge Sotomayor’s past judicial decisions strongly suggest that is not the case.

As Judge Sotomayor’s opponents advance increasingly extreme arguments (and tactics) to oppose her confirmation, one wonders who they imagine they’ll get as a replacement nominee if their efforts succeed. I am persuadable that she is worth opposing for some reason or another, and that the right would do better if given the chance to roll the dice on another nominee, but seeing little if any evidence of that proposition, I’m with Reihan — let’s talk about health care or something.