Confirming Judge Sotomayor

During the past presidential campaign I wrote several times that the key issue for the next administration would be court appointments. It didn’t take long into the Obama administration for that point to be made quite clear.

The nomination of appellate court Judge Sonia Sotomayor, a brilliant, accomplished and colorful choice to replace Justice David Souter, will clear Senate confirmation, no doubt. No doubt, as well, Republicans and their media cheerleaders will harp and complain about some feature of Judge Sotomayor’s career, forgetting they lost the election, ignoring the preposterous Harriet Miers nomination of their last president and looking for anything to complain about, no matter how farfetched. Many of them were against the predicted Obama nominees-to-be before they were nominated. “I don’t know who it will be, but I’m against him/her,” they seemed to be saying. In their political game-playing, they will commit political suicide by attacking this politically perfect nominee.

Past Supreme Court confirmations were brief and perfunctory, perhaps too much so. The late Justice Hugo Black never would have been nominated or confirmed in today’s world. The former KKK member would have been diced by special interest groups of the left. He became a liberal leader of the court for decades. In today’s climate, there will be few surprises, as was Justice Souter, whom Judge Sotomayor will replace.

Since the notorious Bork nomination, we’ve moved to the other extreme. Only candidates with a white-bread background, with no controversial issues to define their careers, little provocative writing, can now survive the ordeal of the confirmation process. We end up with bland judges like Justice Anthony Kennedy. The Senate will never confirm a Brandeis in this partisan climate, where an active public track record is a cross to bear, rather than a qualification based on experience and leadership.

Proponents and opponents now run PR campaigns often stressing image over substance, and sometime depicting caricatures of the candidate. Hearings drag on, much too long. The strong majority the Democrats hold in the Senate will overcome the desperate Republican need to find some issue to delay the inevitable confirmation, and to proselytize their messages, which were rejected in the past campaign.

Here we go. As I said repeatedly, before the fact, “It’s the courts, stupid!”

Visit www.RonaldGoldfarb.com.