Sotomayor's greatest impact could come from who she is

McClatchy NewspapersMay 26, 2009 

WASHINGTON — President Barack Obama hopes to put his lasting imprint on the Supreme Court with his choice of Sonia Sotomayor, but she ultimately may be remembered as much for who she is as for what she does.

While her liberal record on the appeals bench will generate a summer-long clash of ideologies in Washington and a high-decibel battle on cable TV and talk radio, her ideology isn't likely to shift the court much, if at all. If the Democratic-controlled Senate confirms her, as it's widely expected to, she'll replace retiring Justice David Souter, a moderate vote.

Her identity will have a more immediate impact.

Sotomayor would be the first Hispanic to serve on the court, a working-class kid from the Bronx whose widowed mother toiled to send her daughter to inner-city Roman Catholic schools and who choked up watching the president nominate her daughter Tuesday at the White House.

Obama said that her identity and life story gave Sotomayor, a Princeton and Yale Law School graduate, the empathy atop her intellect and judicial experience that made her his top choice.

"It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live," Obama said in the East Room ceremony.

After meeting with Sotomayor for an hour last Thursday at the White House, the president called her Monday evening with the news. He then called the others he'd met with, Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and federal Judge Diane P. Wood.

He said that Sotomayor would arrive at the high court with more judicial experience than anyone who was now serving there. (Aides said later that she had more experience than any nominee in a century.) Obama also stressed her biography, noting that her parents had moved to New York from Puerto Rico.

Sotomayor, 54, called it "the most humbling experience of my life."

For all the White House drama, however, Sotomayor isn't likely to change the court's balance.

In fact, Obama may not get a chance to do that for some time. The two oldest members of the court are liberal or left-of-center votes: John Paul Stevens, 89, and Ruth Bader Ginsburg, who's 76 and recovering from cancer. The oldest conservative on the court is Antonin Scalia, 73.

However, as the first Hispanic and the second woman on the current court, Sotomayor will change the way the court looks.

"With eight men, one woman and no Hispanics currently sitting on the court, President Obama listened to voices like former Justice Sandra Day O'Connor in recognizing that diversity on the bench is essential," said Sen. Barbara Boxer, D-Calif.

"Her unique perspective will help ensure that women's rights are protected and that their experiences continue to play a role in the highest court in the land," said Ellen Malcolm, the president of Emily's List, a group that supports women in political campaigns who favor abortion rights.

"With her nomination, the court is one step closer to reflecting the diversity that makes our country so great."

If Sotomayor's background will influence the way at least one justice thinks — and depending on her powers of persuasion, which some have questioned — that could play a larger role in the court's decisions. Obama also may be betting that with her strong personality and experience as a prosecutor, she'll be a counterweight to Scalia, a strong-minded conservative whose blue-collar ethnic background in some ways resembles Sotomayor's.

However, her elevation also could have a lasting impact on American politics, a factor that Obama and his aides also may have taken into account.

Hispanics are slowly but steadily making up a greater part of the vote: 5 percent in 1995, 7 percent in 2000, 8 percent in 2004 and 9 percent in 2008. They're also solidly Democratic, giving the Democratic presidential nominees a majority of their votes in the last four elections.

Those political implications will underscore this summer's confirmation hearings, and they could eclipse the debate over Sotomayor's legal qualifications.

Posting at the conservative National Review Online, writer Jonah Goldberg called Obama's move a brilliant political gambit, picking a very liberal nominee and all but daring conservatives to vote against her.

"One advantage for Obama in picking the most left-leaning Hispanic possible/confirmable is that it actually allows the Democrats to — once again — cast Republicans as anti-Hispanic," Goldberg said.

Sen. Charles Schumer, D-N.Y., said that Republicans would oppose Sotomayor at their peril. "I think the confirmation process will be more of a test of the Republican Party than it is of Judge Sotomayor," Schumer said. "It's a test for the Republican Party because she is a mainstream justice. . . . Why would they oppose her? There's no really good reason."

Republicans in Congress held their fire, promising a fair hearing before making up their minds.

"Senate Republicans will treat Judge Sotomayor fairly," said Sen. Mitch McConnell of Kentucky, his party's leader in the Senate. "But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law evenhandedly, despite their own feelings or personal or political preferences."

Yet conservatives warned that Sotomayor isn't the impartial judge the White House described and said that her background would have a negative impact, not a positive one, on how she judged cases.

"Sotomayor readily admits that she applies her feelings and personal politics when deciding cases," said Wendy Long, counsel to the Judicial Confirmation Network, a conservative group.

Conservatives pointed to an affirmative action case in Connecticut in which Sotomayor voted with the appeals court majority to deny promotions to 18 white firefighters although they had passing test scores. Another judge on the 2nd U.S. Circuit Court of Appeals criticized the ruling as sloppy.

They also pointed to comments Sotomayor has made, such as one in which she suggested that a Hispanic woman is better equipped than a white man is to judge discrimination cases.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," she said.

(David Lightman contributed to this article.)

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