Dispatches from the Creation Wars

Leaving aside the substantive issues for a moment, let’s look at the purely political aspects of the Sotomayor nomination. Let’s start with the obvious: Obama has put the Republicans in a bit of a pickle. He knows very well that the Republicans were fully prepared to attack anyone he nominated as a radical, out of the mainstream, crazy liberal activist. Now they have to make that attack against the first Hispanic woman ever to be nominated for the court.

Hispanics are becoming a major power in this country and they have so far gone a bit back and forth. Bush had solid support from Hispanics in 2000, but Obama got them by a wide margin in 2008. Keeping them in the Democratic fold is important for Obama, as is wooing them back for the Republicans. Attacking Sotomayor is going to make it a lot tougher for them to do that.

This puts the Republicans in office and conservatives interest groups in a real bind because they were really looking to use this nomination to raise money and that means they had to really make this nominee, no matter who it is, out to be a virtual antichrist, a threat to all that is good and wholesome. But the more they try to make that case, the more they risk turning off Hispanic voters and moderate voters as well.

Then there are other considerations. Like the fact that she has been through the confirmation process twice before and enjoyed Republican support. In her confirmation for the appeals court in 1998 she enjoyed the support of Strom Thurmond and Orrin Hatch. It’s going to be tough for Hatch to now take the position that she’s not qualified for the Supreme Court. She also was supported by many other Republicans still in the Senate, including Robert Bennett, Richard Lugar, Susan Collins, Olympia Snowe, and Judd Gregg. Heck, she even got votes from Rick Santorum and Jesse Helms.

I also have to comment on some of the nonsense I’m hearing from the White House, which continues to insist that she was picked because she was the most qualified person for the job, not because she’s a woman. That’s nonsense. She was picked because she is a very well qualified woman and that is not at all the same thing.

It would be absurd to claim that Sotomayor is more or less qualified than any number of male appeals court judges and legal scholars. Obama did not look at this long list of people and, by sheer coincidence, happen to conclude that the top four candidates were all women. Because they’re not. Gender was not only a consideration from the start, it was the consideration from the start.

And there’s nothing wrong with that. This isn’t like 1981, when Reagan decided to name a woman to the court and had to go all the way down to a state court judge to find one that was qualified. There are dozens and dozens of very well qualified women on the bench, in academia and in private practice. They are separated not by qualifications but by subtle differences in approach and temperament – and yes, by irrelevant attributes that give rise to purely political considerations. And I find it insulting to my intelligence that the White House has to pretend that those considerations had nothing to do with the pick.

On the other hand, I don’t find it quite as insulting as when the first President Bush looked into the camera and announced, with a straight face, that Clarence Thomas was the most qualified man for the job in 1991 (and I say that as someone who has defended Thomas’ performance as a justice even while criticizing most of his rulings).