28 May 2009

Sonia Sotomayor A Shoe-In

President Obama's first U.S. Supreme Court nominee, Sonia Sotomayor, is almost certain to be confirmed now that key Republican Senators have announced that they don't plan to try to filibuster the nomination and given the large Democratic Party majority in the U.S. Senate. She will replace Justice Souter, one of the four Justices in the Court's liberal wing.

The appointment is not expected to greatly change the results the U.S. Supreme Court reaches in deciding cases, because in the usual close case Justice Kennedy who remains on the bench is the swing vote between the court's four conservative justices (Chief Justice Roberts, Justice Alito, Justice Scalia and Justice Thomas), and the court's four more liberal justices. Sotomayor is widely expected to vote with the court's more liberal wing in most close cases.


Michael Malak said...

Can we really tell anything about Sotomayor? She seems to have respected precedent in her decisions more than either her own opinion or even common-sense reading of the law. I get the impression that now she will be on the Supreme Court, she'll be chomping at the bit to finally establish her own precedent. I see her as unpredictable.

Sadly, radio talk on both left and right all focused on her ethnicity and gender to the complete exclusion of her jurisprudence.

As for who is conservative, only two of the nine would overturn Roe v. Wade. In Gonzales v. Carhart, Thomas wrote a short separate concurrence to specifically repudiate Roe v. Wade as being unconstitutional, and in which Scalia joined. Alito and Roberts notably did not join in that concurrence.

Andrew Oh-Willeke said...

The line in the court between the conservatives and liberals is very well established empirically. Not every issue is partisan, but many are partisan.

We can safely assume that Sotomayor is liberal partially because Thomas, Scalia and Alito are so concentrated at the very far right of the spectrum, and only the middle vote counts. They are radical and atypical of the bench and the bar generally. If she were as conservative as any of them, it would have stuck out clearly in her jurisprudence and pre-appointment associations.

Could she be a stealth Kennedy? Perhaps. But, her lengthy and precise opinions seem to disavow his tendency to make "seat of his pants" distinctions and compromises.