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Academic

: The Yin Blog

Sotomayor, Supreme Court nominees, and a suggestion for Obama

By Tung Yin

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If the Senate Judiciary Committee vote is any indication of things to come, it looks like Judge Sotomayor will be confirmed handily, but with nowhere near the commanding votes that Ruth Bader Ginsburg or Stephen Breyer got (well over 90%). Instead, it'll probably be something like 65-35, with a few Republicans breaking ranks to vote to confirm, but most voting against her.

I think that's too bad, as she's plainly well-qualified to be a Supreme Court justice. It's especially good that, unlike the rest of the Court, she actually has trial-level experience, not just as a former district court judge, but also a federal prosecutor. Perhaps someone with trial-level experience will keep the Court from issuing opinions like Clinton v. Jones that exhibit an alarming degree of cluelessness about the way modern litigation works. However, as many have noted, President Obama can hardly complain if Sotomayor gets a bunch of "no" votes, as he himself voted against John Roberts and Samuel Alito even though both of them were well-qualified as well.

My view is that elections matter, and the President is entitled to a large degree of deference in his selection of Supreme Court nominees. If the President nominates someone who's simply not up to the job (e.g., Harriet Miers, not because she hadn't been a judge or "only" went to SMU law, but because she couldn't even answer the Senate's questionnaire intelligently), the Senate should feel free to vote down the nominee. And someone who doesn't have the right judicial temperment could also be voted down. But pure ideological disagreement shouldn't be a reason to vote against the nominee.

There's a way for Obama to make a grand gesture -- he could publicly say that his votes against Roberts and Alito (especially the former) were mistakes. He might even apologize to them. By owning up to a mistake, he could began to break the cycle of increasing partisanship in Supreme Court confirmation votes.

Full post as published by The Yin Blog on July 30, 2009 (boomark / email).