Sotomayor Replaces Souter… So What? One Liberal In, One Liberal Out

Rich Galen was press secretary to former Sen. Dan Quayle and former Rep. Newt Gingrich , reported on positive aspects of the war effort from 2003-2004 in Iraq at the request of the White House, and blogs at www.mullings.com.

The nomination of Judge Sonia Sotomayor to be an associate justice of the Supreme Court is the judicial equivalent of an early season game in baseball.

Sotomayor will be replacing David Souter, who, although he was tapped by President George H.W. Bush as a moderate member of the court, has been seen as a fairly regular vote for the liberal wing.

That said, Judge Sotomayor will not do anything to change the tone or tenor of the court because one liberal will be replaced by another. I use the word "liberal" as a point on the political continuum, not as an ad hominem attack.

The big issue that raises its head during confirmation hearings for a Supreme Court seat is, of course Roe v. Wade. Roe was decided in 1973 when the chief justice of the United States was Warren Burger. In the 36 years since, no Supreme Court—whether with a conservative or a liberal bent—has seen fit to revisit the basic precepts of that decision.

So, although there will be considerable heavy breathing and appeals for funds from both liberal (don't let the Extreme Right Wing in the Senate hold up her nomination) groups and conservative groups (don't deny the unborn a voice on the Supreme Court) the reality is, it is unlikely that Roe v. Wade will be up for review any time soon.

Barack Obama is a man of color who is sensitive—perhaps hypersensitive—to issues of race and gender. He has disappointed the unions by not putting "card-check" at the top of his legislative agenda. Paying the UAW off with healthy (if that's an apt word in this context) ownership shares of Chrysler and GM does not help the SEIU, which is a huge collection of smaller, independent unions looking to increase their numbers in smaller and mid-sized companies.

Obama has also disappointed the ACLU types by not having the faintest idea what to do with the most dangerous inhabitants of Guantanamo and finally coming to the conclusion that they will have to remain in custody somewhere—probably for the rest of their lives.

He has disappointed his Peace Now constituents by not being able to speed up our withdrawal from Iraq and, indeed, committing more troops to Afghanistan.

So, the president was looking for a win for the Democratic base and the retirement of Justice Souter opened the door.

In choosing Judge Sotomayor, he, of course, gets a twofer: A woman and a Hispanic. Absent Justice Louis Cardozo (who, as a Sephardic Jew, has sometimes been mentioned as the first "Hispanic" member of the Supreme Court; Judge Sotomayor has unquestioned Hispanic credentials.

She is also a good story—not unlike Obama's own. Born into poverty, succeeded at Ivy League universities as an undergrad and in law school, then went on to be successful by any measure in her pursuit of a career in the law. She can claim nominations by Republicans (George H.W. Bush) and Democrats (Bill Clinton) and two confirmation hearings as she made her way up the ladder of the federal judiciary.

The question then comes as to how Republicans should react to her nomination. It is axiomatic in this era of "If it's your idea it's bad; if it's my idea it's good" that Republicans will generally oppose her. They can point to her being overturned a significant number of times by higher courts and at least in one case being chided for coming to the correct conclusion using faulty reasoning.

The days of the opposition party agreeing to a nominee based solely on his or her qualifications is long over. In fact, Sen. Barack Obama, Sen. Joe Biden, and Sen. Hillary Clinton all voted against Judge John Roberts to be chief justice solely on the grounds that they didn't like the way they thought he might vote on cases that had not yet been brought.

This, after Roberts wowed 'em at his hearings and got even his most vocal critics to agree he was brilliant and highly qualified. John Roberts is a white male and so Obama, Biden, and Clinton ran no risk of incurring the wrath of any minority organizations.

Republicans enjoy none of those advantages. Women will want a woman on the Supreme Court. Hispanics will want an Hispanic on the court. Liberals will want a liberal on the court. Add to that, GOP members of the Senate do not have the ear of the popular press these days and so they will likely be portrayed as being anti-woman, anti-Hispanic, and they are already anti-liberal.

In the end, this will be, as Shakespeare wrote, a tale "full of sound and fury, signifying nothing."

When the Supreme Court opens for business on the first Monday in October, I will be surprised if Justice Sotomayor is not among the nine members taking their seats.

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