Will the "Sotomayor standard" make it harder for Obama to seat his next justice?

Will the "Sotomayor standard" make it harder for Obama to seat his next justice?

Will the "Sotomayor standard" make it harder for Obama to seat his next justice?

The law, lawyers, and the court.
July 25 2009 7:21 AM

The Next Justice

Will the "Sotomayor standard" make it harder for Obama to seat his next justice?

Sonia Sotomayor. Click image to expand.
Sonia Sotomayor 

Throughout the weeks leading up to the confirmation hearings of Judge Sonia Sotomayor, one often heard it said that President Obama was thinking in threes. He wasn't just seating this one Supreme Court nominee—he was teeing up the next two for far more controversial hearings down the road. If that was the case, one has to wonder whether the Sotomayor hearings made it easier for Obama to select a more liberal candidate should John Paul Stevens or Ruth Bader Ginsburg retire in the next few years.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Conservative groups are crowing that by staging what was, in effect, a three-day infomercial for appellate judges as mechanical umpires who simply "apply the law" by just "calling balls and strikes," Sotomayor, confirmed or not, has proved conclusively that it's John Roberts' world now—we all just rent space there. When she expressly disavowed President Obama's much-touted view that "empathy" is the most important quality a judge brings to the bench, Judge Sotomayor made it clear that—at least for the foreseeable future—we won't be hearing about empathy, real-life experiences, or noble champions of the downtrodden in connection with future court nominations.

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We probably won't hear much about evolving standards of decency or living Constitutions, either. Sonia Sotomayor's Constitution evidently looks a lot like Antonin Scalia's old, sacred, and "immutable" one. Some liberals were horrified when Sotomayor not only failed to lay out a defense of liberal constitutional jurisprudence but actually embraced a model of judging with all the heart and passion of an iPhone.

What does that mean in terms of Obama's next pick or picks? Manuel Miranda, chairman of the Third Branch Conference, a conservative judicial advocacy group, told the New York Times last week that the goalposts have now shifted significantly: Because the nominee portrayed "herself as someone who is bound by the rules that conservatives have been articulating for so many years," if Obama's next judicial picks hold even slightly less mainstream views, Republicans "now can say, 'You don't meet the Sotomayor test.' "

That would certainly weed out a good many names from the Obama shortlists circulated in the weeks after David Souter's retirement. Potential nominees like Stanford Law School's Kathleen Sullivan, Yale Law School's former dean Harold Koh, and even Obama adviser Cass Sunstein may not be able to meet this new Sotomayor standard. Indeed, anyone who has ever advocated a judicial strike zone any larger than the size of a walnut now looks to be shockingly controversial.

What ultimately saved Sotomayor from an even more contentious hearing was her nearly unblemished 17-year judicial record. By the end of the fourth day, it was clear that not even her critics could find any fault there. But that, too, sets an almost impossible standard for Obama's next justice, who will likely need to have the near-magical combination of hundreds of narrowly decided cases, yet no controversial rulings on guns, abortion, the death penalty, or executive power.

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The flawless Sotomayor judicial record also means we may need to bench some of Obama's other reported Supreme Court favorites, including people like Homeland Security chief Janet Napolitano, Michigan Gov. Jennifer Granholm, and Massachusetts Gov. Deval Patrick—none of whom have decades of mainstream judicial opinions to counter the accusation that they are too "agenda driven" or "political." (They are, after all, politicians.) If a single line from a 2001 speech could nearly overmatch 17 years of temperate judicial experience, how is a future Justice Granholm going to moderate the 29 speeches she gives every day?

Democrats are quick to say none of this really matters. After all, Obama is a popular president, with 60 votes in the Senate, and perhaps by the time the next seat opens up on the high court, he will have slain the dragons of health and energy reform as well as the other urgent problems that may have disinclined him from a fight over the judiciary this year. Maybe he'll be willing to expend the political capital to seat a liberal Justice Scalia—someone who will use the confirmation process to lay out the case for judges with working hearts as well as sharp minds. Maybe. But then Obama may never be more popular than he was when he tapped Sotomayor. He had the votes to seat another William Brennan this time but opted not to. Whether that's a measure of Obama's judicial preferences or his sense of what the American public wants in a judge is still unclear.

An ABC/Washington Post poll taken last week showed that 58 percent of respondents think the Senate should confirm Judge Sotomayor. But a Rasmussen poll taken at about the same time showed 83 percent of those surveyed insist that the legal system "should apply the law equally to all Americans rather than using the law to help those who have less power and influence." In other words, America really likes John Roberts' vision of the law, even when it doesn't like his legal outcomes. That's why Sotomayor was such a brilliant choice and why she gamed her hearings so perfectly.

Whether these colliding poll numbers reflect a massive failure of liberal constitutional vision or just halfhearted liberal constitutional salesmanship also remains to be seen. The president, the U.S. Senate, and the American public have all spoken, and they are surprisingly consistent in their collective judicial fantasy: We want a robot umpire with a heart of gold. Now how hard can it be to find two more of those?

A version of this article appears in Newsweek.