The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Wednesday, May 27, 2009

Conservatives should probably be glad of Sotomayor nod
Tom Smith

There is something to be said for letting one's opponents take their bitter with their sweet.  Our young President's nomination of Judge Sotomayor to the SCOTUS would seem to have some of both.  On the one hand, she is Hispanic, a woman, and has the most compelling personal story of any nominee to the Supreme Court since Clarence Thomas.  (Shocking that no one has mentioned that.)  On the other hand, if Jeff Rosen's reporting is to be believed, she is not a judicial luminary, and is unlikely to stack up intellectually to Roberts, Alito, Scalia, or maybe Thomas on the one hand, or Breyer or Ginsberg on the other.  It sounds moreover like her personality might come in at something less than compellingly charming.

This is not such a bad thing.  If you are, oh, a professional sports team, or an academic bowl team, and your opponents choose some of their team members on grounds other than how good they are at the sport, or how much academic trivia they know, that helps you.  So it would seem Obama is choosing to get some relatively short term political gain from his appointment, at the cost of getting more long term influence on the law by nominating some intellectual giant of the left.  I mean, should we be happy or sad that Obama did not nominate Cass Sunstein (the Middlesex School, Harvard, Harvard varsity squash, Harvard Lampoon, Harvard Law) to the Court?  Maybe that's not a good example -- take someone as smart as Cass but more unambiguously on the left:  no one comes immediately to mind, there being some tension between these qualities, but you see what I mean.

So I say, let our young President have his nomination to the Court.  Is the legal left better or worse off having Justice Alito on the Court instead of Justice (pardon me while I shudder and apologize for not being a nicer person) Miers?  It seems to me we are better off and they worse for having somebody of Alito's calibre on the Court.  Just to state my obvious point yet again, the reason why it's a bad idea in many settings to choose somebody for a job partly on the basis of their race, sex, or other actually irrelevant qualities, is that you are not maximizing what you should be maximizing, which in the case of SCOTUS is presumably some combination of intelligence, knowledge of the law, fair minded temperament, ability to work nicely with others, and willingness to apply those large talents to the frequently trivial and incredibly boring issues to which the Court must address itself, such as whether a military officer can wear a yarmulke under his cap.  It is ironically enough the same issue as in the New Haven fire fighter-person case, which involved throwing out a test of fire fighting knowledge because none of the highest scorers were African-American.  And yet, were I roasting in some burning building in New Haven, I would want my fire fighters to know which valves to turn, how to deploy their whatchamacallits and so forth, whatever their skin color might be, so as the better to save my sorry ass.  I am sure anybody in the position of needing urgently to be rescued would feel the same way.  It would be, just get me outta here and I'll send a donation to the NAACP or wherever!  But apparently not with this nomination to SCOTUS.  So fine.  The Obama-ites get their Hispanic, female, empathetic Latina, but (assuming this is in fact the case) also their non-legal rocket scientist with an abrasive personality, on the highest affirmative action legal employer in the land.  Good luck with that. 

(There is the view that, nope, you want the smartest people on both or all sides of the jurisprudential-political spectrum on the Courts, because that's how you will get the best results.  I'm just not persuaded of that view, because I think we unfortuantely find ourselves at a time in history where the wrong side is supporting ideas so pernicious of the rule of law and other good stuff, that the best thing would be for them to lose as much and as often as possible.  So it is like the baseball fan who explained to me that if you are a true fan, you want your team to utterly crush all comers, not to have a "good, close game."  Regarding the rule of law, I'm a true fan.)

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Comments

For all the wonderful and enchanting things about our current President, I'm really not impressed with his big picks thus far. For example, any objective person has to come to the conclusion that Biden was not a competent selection. Sure Obama won the election but Biden was a terrible choice for VP. The Treasury Secretary was also another bad choice.

Sotormayor is a mediocre choice. Sure she is capable and will be adequate but she is hardly the best choice for liberals. She is better than Harriet Miers but she is no Roberts. From a conservative standpoint, it could be worse or it could be much better. I'm not surprised by it. Obama is the President and he gets to pick 'em.

Posted by: anon | May 27, 2009 9:50:15 AM

I think someone who would fit the mold of "someone as smart as Cass but more unambiguously on the left" is William A. Fletcher on the 9th Cir (perhaps not quite as smart - but no dummy either)

Posted by: Alex | May 27, 2009 11:28:53 AM

As smart as Cass Sunstein but unambiguously on the left? That's easy: Catharine MacKinnon. (Mind you, she's not a coalition-builder, nor even always a civil discussant, but she's definitely very smart.)

William Fletcher was my property professor at Boalt. I never thought of him as particularly brilliant, but it may have been either the material or the students that dimmed him. (Don't get me wrong, I liked him and I liked the course, I just didn't see him as a great mind.)

Posted by: y81 | May 27, 2009 11:53:36 AM

Wouldn't Larry Tribe qualify as being "as smart as Cass but more unambiguously on the left"? Perhaps he's too old.

Posted by: DJF | May 27, 2009 10:03:41 PM

The Miers-Alito gambit was a special case. Some of us believe that Miers had been what military tacticians call an economy of force operation, that is a secondary effort with the limited objective of influencing the outcome elsewhere, at the real point of decision. Think of Thermopolae, or the Alamo. Were these "fiascos," or were they war-winning delaying operations?

The Miers nomintion did two things. It focused the debate over confirmation on qualifications, with respect to which Alito was quite strong, and it "attritted" opposition resources of time, money, and, most of all, public and media attention. By the time Alito came up, the country was tired of hearing about judges, and Alito more or less breezed through.

That said, there is no comparison between Sotomayer and Miers, I agree that Sotomayer is a good pick from the conservtive point of view, but Miers was so far from being well-qualified--almost Carswell caliber--that I am surprised more people had not seen the con.

Posted by: Lou Gots | May 28, 2009 7:42:50 AM

Lou, if Miers allowed herself to be used this way, it indicates a tremendous lack of respect for the nominating process (as well as for herself).

But I doubt this was the case; these sorts of schemes work out better in novels than in real life.

Posted by: DTH | May 28, 2009 11:41:21 AM

I dont think that one of the questions on the fire fighters' test was which valve they should turn.

Posted by: Matt | May 28, 2009 4:44:26 PM