First, let me confess to being an old-fashioned stick in the mud when it comes to Supreme Court nominees. I think the standard that prevailed through most of our history was fine. If a nominee was determined to be well-qualified for the Court, and had no ethical problems or other disqualifying issues, then the President should get the nominee he wants for the Court. That is one of the perks of winning the Presidency–picking a nominee whose thinking the winner considers congenial to his governing philosophy. If the Founders had wanted it done another way, they could have given the Senate the power to originate nominees.
That’s why I think that despite a few troubling comments, discussed here a few weeks ago, Sonia Sotomayor should be confirmed. She’s obviously highly qualified, perhaps more so than several sitting Justices, and there are no ethical skeletons as far as we know. So Obama should prevail.
But…but…if enough Senators followed the standard set by Obama himself when he voted on the nominations of John Roberts and Samuel Alito, Sotamayor could be derailed. Consider this from Time mag:
Roberts, now chief justice, was qualified and talented enough for the court, then-Illinois. Sen. Obama said in a September 2005 speech. But Roberts, he said, “has far more often used his formidable skills on behalf of the strong in opposition to the weak.”
The young senator said he probably would have no trouble with Roberts’ rulings in 95 percent of the high court’s cases. But “what matters on the Supreme Court is those 5 percent of cases that are truly difficult,” when “legal process alone” will not suffice, Obama added.
“That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy,” he said. “In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”
Using that standard, Obama voted against both Roberts and Alito. He acknowledged that they were excellent jurists whose qualifications were beyond quibble–but he didn’t want them on the Supreme Court.
Should Senators use the Obama Standard to sink Sotomayor? I don’t think they should. But if they followed the President’s thinking about those judicial hearts, they would.