As I write, the news is that Sonia Sotomayor was finally confirmed by the Senate by a 68-31 vote, with nine Republicans joining all Democrats in confirming. This is a reasonable outcome and I believe that the conduct of the hearings exhibited about the right balance of rigor, respect, and expository aspects of judicial philosophy, i.e. a “teaching moment”, expected of the loyal opposition. Hopefully, as a result, the ground is prepared for the next confirmation fight, which figures to be a bloodbath. We almost never know how these things will work out for several years, but on observation so far, it seems that this appointment could have been much worse for strict constructionists, and I sense that she will not be a strong philosophical leader on the Court. We’ll see.
The story line for her, of course, was and will be, until she otherwise distinguishes herself on the Court, her personal “narrative” and identity politics as practiced by the man who appointed her and who vowed to rise above those factors. The two major substantive issues will be her application of natural law (which can be read as “empathy”) in judicial review and her application of positive vs. negative rights interpretation of the Constitution. If she becomes a leader on the Court for her and Obama’s expansive point of view in these areas, she could be a problem beyond her vote. Souter was a disaster; if she is no worse, consider us fortunate.
