Are you starting to get nervous about Judge Sonia Sotomayor? A bit troubled, perhaps, that she may actually end up moving an already ultraconservative Supreme Court even (a little) more to the right?
Today’s Wall Street Journal, for example, brings another in a growing list of concerning reports on the nominee’s tendency to rule the “right” way in at least a number of contexts. According to the Journal, Sotomayor’s record in the area of criminal law appears to be to the right of Justice David Souter, the moderate she will be replacing.
And have you heard the one about how Judge Sotomayor has agreed with the most conservative members of her current court 95 percent of the time? Well, guess what? It’s true (though many of those cases were no doubt uncontroversial). As E.J. Dionne Jr. has noted:
Republicans would be foolish to fight the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court because she is the most conservative choice that President Obama could have made.
And while the far right’s loony brigades continue to raise hell about Judge Sotomayor’s supposed liberalism, the more thoughtful folks within the right wing’s massive political/legal complex are quietly hopeful. They see the very real potential that she might actually end up moving the Court’s center of gravity slightly to the right.
We need to remember, Judge Sotomayor hasn’t — sadly — been picked to replace Antonin Scalia: no, she’ll be replacing Justice Souter, a very dependable vote for what has pathetically come to be known as the “liberal” side of this extraordinarily conservative Court. Make no mistake: in the real world, David Souter, a George H.W. Bush appointee, is no liberal. It’s only the extreme conservatism of the five justices (Kennedy slightly less so than the others) to his right that makes him seem “liberal” by comparison.
And a Democratic president has now nominated someone who may be to his right to replace him?
Jesus, what is wrong with the Democratic Party? How do we seem to always end up electing Democratic Presidents who just don’t get it when it comes to judicial appointments?
The Republicans have it figured out. Strike while the iron is hot is their mantra. When given the chance to make his appointments to the Supreme Court, Bush didn’t fool around: he bet the farm, nominating Roberts and Alito, two of the most conservative justices to serve on the Supreme Court in modern times. What, by comparison, did Bill Clinton give us? Stephen Breyer, an eminently qualified justice, to be sure, but one very much on the right side of the center/left continuum (Clinton’s other appointment to the Court, Ruth Bader Ginsburg, while to Breyer’s left, is also a moderate). And now it’s looking as though Obama has done the same thing.
So the rightward wobble of the Court will continue, with Republican presidents appointing flame throwing right wingers and Democratic presidents responding with tepid moderates.
Now, to be fair, no one can know for certain where Judge Sotomayor will end up ideologically once she’s on the Court. Being a justice of the High Court is very different from being an appeals court judge bound by the Supreme Court’s decisions.
But one thing seems certain: given the chance to appoint a strong liberal voice to the Court, someone with a proven track record, Obama took a pass. And given that concern over the future of the Supreme Court is one of the biggest things that motivated Obama’s liberal supporters that’s sad — and more than a little troubling.