Judge Sonia Sotomayor has a wonderful poker face.
A couple of months ago, we were on a panel together, talking about, of all things, the nomination and confirmation of federal judges. At this time there were not, yet, any vacancies on the Supreme Court. Nevertheless, at the start of my remarks, I turned toward the judge and remarked that I hoped I would soon be addressing her not as “Judge Sotomayor” but as “Justice Sotomayor.”
She never even smiled.
Now that President Obama has wisely chosen Judge Sotomayor as his first nominee to the Supreme Court, I suppose I should let the cat out of the bag: I have been rooting for her all along. Not only because I know her, but because everything I know about her suggests that she will be a fantastic justice.
I teach a couple of her decisions in my intellectual-property courses, because they are scholarly, clear, and fair-minded.
I have known her since we were law students together at Yale, back in the ‘70s. We worked at the same law firm over the summer, and I edited her note for the Yale Law Journal, a thoughtful piece of scholarship in which she did a fantastic job of navigating between two extremes to find a plausible and pragmatic and by-no-means-obvious answer on a difficult and even abstruse question of constitutional law: the “equal footing” doctrine for the admission of new states to the Union.
Around the United States Court of Appeals for the Second Circuit, Judge Sotomayor has developed a reputation as a thoughtful moderate, with liberal leanings, to be sure, but hardly a firebrand on a mission. She also writes excellent opinions. As a matter of fact, I teach a couple of her decisions in my intellectual-property courses, because they are scholarly, clear, and fair-minded.
I suppose the left will not be entirely happy with the president’s choice, and the right, not entirely unhappy. Sotomayor is a former prosecutor, and her criminal-law decisions as an appellate judge seem to me to have a bit of a pro-prosecution bent. For example, her position in United States v. Santa, allowing the admission of evidence seized by the police in the course of a mistaken arrest, eventually was adopted by the Supreme Court.
On the other hand, her participation in Ricci v. DeStefano, the controversial case involving the New Haven Fire Department, is already being waved as if it were a red flag. It isn’t. Ricci (which in any event will be decided by the Supreme Court any day now) involved the decision of the City of New Haven, Connecticut, to throw out a promotion test after not a single black applicant passed it. Black applicants were more than one-third of the pool, and the city was terrified of being sued for racial discrimination. It was, but by the test takers who passed. Maybe New Haven overreacted; maybe not. Few issues have proved as difficult for the nation to resolve as overcoming the lingering legacies of slavery and racial discrimination. How precisely we do that, when we see the results manifest, remains perhaps the greatest moral challenge to America and Americans. People of good will can hold more than one position. To pretend, as some already are, that Judge Sotomayor’s position is outside the mainstream is absurd.
Of course, there is often a degree of absurdity to the confirmation process. Too often, we use the nominees as cannon fodder, loftily lobbing rhetorical shells from a safe distance while the potential justices duck and cover. Ducking and covering is what pretty much all of them do, and will continue to do. Sometime this summer, Judge Sotomayor will join the long parade of nominees in answering nearly every question of any substance with, “I’m sorry, Senator, but I cannot comment on an issue likely to come before the Court”—or some variation thereof.
Good for her. The senators have been asking the questions for 50 years, and, with rare exception, not getting any answers. Most nomination contests proceed in this leisurely way, and, when the hearings are done, the vote is taken, and we are done. I suspect that Judge Sotomayor’s confirmation will be just as smooth, not least because the Republican Party, struggling to rebuild, does not want to alarm the Hispanic constituency it hopes to court over the next couple of election cycles. Indeed, it is likely that the president made the selection he did in part to avoid a brouhaha in the same summer when the struggle over his health-insurance proposal is looming.
There will be opposition, of course. We have already seen the inevitable anti-Sotomayor whispering campaigns, not only by critics on the right, but also by many on the left who supported other candidates. Well, we do not live in a generous country—not, at least, when generosity means a reluctance to assassinate the characters of those with whom we disagree. Let us hope that, for one summer at least, we can put aside the nonsense, have a fair and thoughtful debate on the nominee’s credentials, and celebrate the ascent of an excellent addition to a Supreme Court that, frankly, could use the help.