By now we know that Judge Sonia Sotomayor has faced a Senate committee's inquiry and passed the process without any serious hitch. Isn't the goal that she escape a slip and get confirmed? Since the term "borking" came into our legal experience it seems this is almost always the case in these high profile nominations. Sotomayor will be confirmed by the U. S. Senate and soon will serve on the Supreme Court, replacing Justice David Souter. For most people the issue of her confirmation was primarily about partisanship. Where does she stand on certain issues that routinely come before the Supreme Court? What is her judicial approach to interpreting law? Can we get her approved and make sure the court reflects our partisan views? Is she pro-life or pro-choice? Where does she stand on guns?
The wild card in all these proceedings is that once a judge is appointed we never know how they will really vote or respond once on the Court. More than one justice has showed a remarkable ability to think and then respond with care and justice once they are appointed for life. I, for one, think this is exactly what the framers had in mind. It may be that the Court has gone too far at times (such as in Roe v. Wade) but in the big picture the Court has served its noble purpose quite well.
I read a number of opinion pieces about the Sotomayor appointment. She is an admirable person who will serve as a great role model to millions of Hispanics and women. I welcome this aspect of her choice. Many have suggested she will handle herself well. She did in the interviews before the Senate committee. But almost no one I heard asked a more important question: Does she possess a first-rate legal mind and can she actually present clear and cogent opinions in writing? I see this question as totally non-partisan precisely because we have had justices from the left and the right who could pass my test with flying colors. Sotomayor may prove me wrong here but I suggest she lacks legal brilliance. She is a fine person, with a great human story and she is quite capable. She will likely become a "safe" vote for the left on many issues. But does she have the intellectual heft to write opinions that shape the law and help us understand how it really works in the twenty-first century? "Does she have," to put it simply, "a first-rate legal mind?"
Newsweek has a now famous column called "Conventional Wisdom" (CW). It is the kind of "quick glance" stuff that you look at for only a few seconds if you read the magazine. In the July 27 issue CW said of Sotomayor, "Sets new standard for convincingly evading politically unanswerable questions." I think that says it quite well.
This is why I was so surprised when I read Washington Post syndicated columnist Richard Cohen asking the very same question I have been asking about Sotomayor since President Obama first announced his choice. Cohen, clearly a social and political liberal, noted that the two justices on the current court who write the most compelling opinions are Antonin Scalia and Chief Justice John Roberts. Cohen is not an advocate for their views but he knows good writing when he sees it. The irony is that Cohen disagrees with Scalia on many legal opinions.
Cohen says, "Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past." Quite an admission I think. Cohen suggests that Sotomayor is particularly disappointing on capital punishment (she does not oppose it) to cite an example that troubles him as a liberal. He writes, "Contrast her approach to this and other problems with what Antonin Scalia has done with issues close to his own heart. Where in all of Sotomayor's opinions, speeches and now testimony is there anything approaching Scalia's dissent in Morrison v. Olson in which, alone, he not only found fault with the law creating special prosecutors, but warned about how it would someday be abused." Cohen says his admiration for Scalia is constrained by the fact that he often believes him to be wrong. But, he adds, "his thinking is fresh and his writing is often bracing." Precisely my point. Sotomayor shows no ability to do the same.
Cohen concludes, in a statement that I share from a more politically conservative vantage point: "This is the sad state of both liberalism and American politics. First-class legal brains are not even nominated lest some senator break into hives at the prospect of encountering a genuinely new idea."
If you want a liberal illustration of the point Cohen makes about Scalia remember Justice Thurgood Marshall, a first-rate thinker and writer if there ever was one. On both the left and the right we seem to fear genuinely new ideas that are faithful to our past but reflective of our present and future context. The Sotomayor appointment reveals that the process by which we confirm these judges is seriously flawed but so are the nominees we are generally given for the Court by our presidents. What the liberals did to Robert Bork, a brilliant jurist who scared the daylights out of the left, has left the country in a sad state where we now settle for appointees who can get through the process. It makes me grateful that Scalia and Roberts did get confirmed. John Roberts will leave a huge mark on this court if he serves out the normal course of his life expectancy as Chief Justice.
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But isn’t she exactly what conservatives have been asking for? A judge that rules very narrowly, sticks with precedent and doesn’t make legislative rulings from the bench? We have judges that rule on principal, we also need some judges that rule on pragmatics. What we need is a balanced court with a variety of legal opinions and styles.