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.)