THE PLANK MAY 26, 2009
Erwin Chemerinsky is the dean and a distinguished professor of law at the University of California, Irvine, School of Law
President Obama's choice of Judge Sonia Sotomayor is brilliant politically, but even more importantly, terrific for the Supreme Court and the future of constitutional law. Everything that is known about her indicates that she will be an easy confirmation and an outstanding justice.
From a political perspective, a Supreme Court nomination can be treacherous, as presidents need to please their political base without risking undue political capital over a confirmation fight. Sotomayor's record shows her to be a moderate liberal who is unlikely to provide fodder for her opponents. Her having been first nominated to the federal bench by a Republican president, George H.W. Bush, will make it harder for Republicans to paint her as an ideologue. Moreover, it is highly unlikely that many Republicans are going to want to strongly oppose the first Latina selected for the high court. The political reality is that with 59 (and likely soon to be 60) Democratic senators, Sotomayor will surely be confirmed. It doesn't make political sense for Republicans to fight a losing battle that risks alienating a key and growing political constituency, Hispanic voters.
Sotomayor brings to the bench essential diversity. Every justice's rulings are a product of his or her life experiences. As a woman, a Latina, a person who has faced a life-long serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor's background, as well as her intellect and experience, make her ideally suited for this role.
President Obama repeatedly has said that he wants a justice who will show empathy. This means a justice who will look at law as it affects people's lives and not just as an abstract set of rules. Sotomayor is likely to be this justice. Several decades ago, Justice Thurgood Marshall in a dissenting opinion admonished his colleagues that it is one thing for them to make judgments about the law, but another to make judgments about how poor people live. The court needs people of color and people from disadvantaged backgrounds to offer the chance for empathy that only such experiences can provide.
But most of all, Sotomayor is an excellent choice because she is an outstanding judge. Her opinions are clearly written and invariably well-reasoned. My former students who have clerked for her rave about her as a judge and as a person. She has enormous experience as a lawyer and as a judge, both in the federal district court and the federal court of appeals. The bottom line is that the court will now have its third woman justice in history, its first Latina, and an individual who likely will be an excellent justice for decades to come.
-- Erwin Chemerinsky