Reality in the Discussion About the Supreme Court Vacancy

Nominations for U.S. supreme Court vacancies have become so ritualized that it is easy to forget the political reality in which they are made.

Democratic President Barack Obama won the 2008 election in both the electoral college and the popular vote. His party expanded its margins in both houses of Congress. A first vacancy in the supreme court has occurred and President Obama has nominated Federal Appeals Court Sotomayor to replace retiring Justice Souter.

The reality is that the new president, with a large majority in the U.S. senate, can be confident that any nomination he would make (except one with egregious flaws) would be confirmed. Judge Sotomayor is a very experienced judge. Conservatives, of course, would not prefer her to take this seat, but conservatives are no longer in power in the national capital. Justice Souter, although appointed by President George H.W. Bush, turned out to be one of the most liberal members of the court. If anything, Judge Sotomayor is a more moderate judicial figure (I base this on her record), and conservatives should be relieved. Of course, what a new justice will do over time on highest court is not predictable at the outset of his or her term, but I think it is fair to say that the court will not be lurching to the left with this new member.

Some conservatives are making much out of a particular statement Judge Sotomayor once made, and are critical of some of her past decisions on lower courts. It is reasonable for her to be questioned about these at her confirmation hearing, and for conservatives to use this hearing as an opportunity to educate the public once again about the two competing judicial philosophies that dominate American jurisprudence today. But no one should have any illusion, barring some unexpected disclosure, that this nomination can be defeated, or from either the conservative or liberal point of view, that it should be.