Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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).
Politics
Comments
Republican attitudes on immigration have already created problems for them with Hispanics. So that is all the more reason for the party to be extra careful with the Sotomayor nomination. Ironically George W. Bush had very liberal views on immigration. That probably had something to do with having an Hispanic within his own extended family.
Posted by: Cheddar | May 27, 2009 10:32 AM
Great article. I can't wait to see how this plays out, the Repubs prepared their canons now they may have to use peas instead of canon balls.
Posted by: WeeFree | May 27, 2009 11:20 AM
Great article. I can't wait to see how this plays out, the Repubs prepared their canons now they may have to use peas instead of canon balls.
Posted by: WeeFree | May 27, 2009 11:27 AM
It's funny that in your previous post, you said that anybody who denies there is a Roe v. Wade "litmus test" for judges is in denial, but now you act like the White House actually could be honest about the superficial characteristics of Sotomayor that were important. Come on man... in the real world, no president is allowed to say, "We had to pick a woman, and better still that it was a Hispanic." Not only would it be damaging to him and his party, but it would be horribly divisive for the country as a whole.
This is just one of those things about politics... It's not like people don't know, the 24-hour news cycle already told people in advance that Obama had to pick a woman. So the White House is doing the right thing by lying about it.
Posted by: James Sweet | May 27, 2009 11:30 AM
There's an excellent 1995 article from Presidential Studies Quarterly, titled "The Appointment of a Supreme Court Justice: a Political Process from Beginning to End," by Michael Kahn. If you can find it, it's an easy read for the layperson, and very insightful. Kahn would likely point out that both the pick of a Latina and the claim that she was picked for her qualifications rather than her ethnicity are smart political choices.
Of course the idea that any one person is the most qualified for the Supreme Court is nonsense. There are any number of very well qualified people, and an even larger number of reasonably well qualified people. The job isn't that much of an intellectual challenge--if you can read and understand case law, you could perform it reasonably well, even if you never went to law school.
Posted by: James Hanley | May 27, 2009 11:45 AM
Why is that? Is it some sort of shameful thing, when choosing amongst many possible candidates who would all do an excellent job filling Souter's position, to decide to increase the gender and racial diversity on the Court? Unless Obama is passing over someone who would be far better for the job in favor of Sotomayor, I don't see a problem with openly admitting his motivations.
Posted by: Gretchen | May 27, 2009 12:22 PM
@Gretchen: Like Brayton, you are arguing from an ideal perspective rather than a practical one. First I want to directly answer your question:
"Is it some sort of shameful thing...to decide to increase the gender and racial diversity on the Court?"
No, of course not.
But I wasn't talking about shame, I was talking about divisiveness. You allowed in your last sentence, "[u]nless Obama is passing over someone who would be far better for the job..." We all know full well that already a lot of people are going to perceive it this way. If the White House were to make this bit of affirmative action explicit, a hell of a lot more people would start to feel that way.
The president's job is first and foremost to lead the country. I don't necessarily think this should come at the cost of concealing information from the public... But since everybody who cares can already clearly see that he intentionally picked a female Hispanic, there is no real concealment taking place here. IMO, by letting CNN tell his motivations for this pick rather than stating them explicitly, Obama is overall doing a better job of leading the country than otherwise.
Posted by: James Sweet | May 27, 2009 12:39 PM
Gretchen @ # 6: I don't see a problem with openly admitting his motivations.
The problem is in what we still must call "the fourth estate". Even though they've utterly disqualified themselves from being taken seriously on any substantive question, the press still wields enormous power, however mindlessly.
Give the media any kind of hook and they will gash us all with it.
Posted by: Pierce R. Butler | May 27, 2009 12:44 PM
He does have a knack for enticing his opponents to suicide.
Posted by: Dr X | May 27, 2009 12:56 PM
James Sweet said:
So it's okay if Obama lies, so long as it's a transparent lie. Obama supporters should just react as though he's giving them a wink and a grin while doing it. Good god, how our standards have fallen....
Posted by: Gretchen | May 27, 2009 1:02 PM
I wonder how much of the anti-Sotomayor whispering campaign and stories over the last couple weeks comes from the Republicans knowing they don't want to be in this position, and hoping they could generate some opposition against a Sotomayor nomination?
Or maybe NRO really does dislike her simply because her name is "unnatural."
---
The Corner
Tuesday, May 26, 2009
Assimilated Pronunciation [Mark Krikorian]
So, are we supposed to use the Spanish pronunciation, so-toe-my-OR, or the natural English pronunciation, SO-tuh-my-er, like Niedermeyer? The president pronounced it both ways, first in Spanish, then after several uses, lapsing into English. Though in the best "Pockiston" tradition, he also rolled his r's in Puerto Rico.
Followed in a later post by:
"Putting the emphasis on the final syllable of Sotomayor is unnatural in English (which is why the president stopped doing it after the first time at his press conference), unlike my correspondent's simple preference for a monophthong over a diphthong, and insisting on an unnatural pronunciation is something we shouldn't be giving in to."
Posted by: Lee | May 27, 2009 1:02 PM
The Republican Party is schizoid on immigration and Latinos. The Wall Street Journal wing of the party is for open immigration. And then you have your Pat Buchanan/Michelle Malkin/Tom Tancredo types who thing every Mexican immigrant to the United States is part of a plot to return the American South West to Mexico.
Posted by: Tommykey | May 27, 2009 1:05 PM
Ironically George W. Bush had very liberal views on immigration. That probably had something to do with having an Hispanic within his own extended family.
Get real. It probably had much,MUCH more to do with the fact that big business (which contributed heavily to GWB, of course) adores having an endless supply of cheap, nonunion workers coming into the United States illegally from Mexico.
Hiring illegal immigrants means driving wages down overall (especially for unskilled and poor native-born Americans), and the employers don't have to worry about nitpicky things like benefits or worker safety.
Posted by: Adrienne | May 27, 2009 1:25 PM
Posted by: Taz | May 27, 2009 1:47 PM
@Gretchen: You say "Good god, how our standards have fallen..." How so? What point in history are you thinking of when politics wasn't this fucked up? Seriously, if you have an answer, I'd love to hear it!
This is the reality when you try to make a nation composed of 300 million hairless apes with brains that were primarily evolved to deal with Stone Age problems. Hell, it's a freakin' miracle that most people will even accept the appointment of a SCOTUS judge that is a different color from them. That's a real triumph over millions of years of strict tribalism.
At what prior point in US history are you thinking of when a president could have been straightforward about the diversity-increasing motives behind the choice of a minority for to fill a SCOTUS seat? Last time I checked, just a couple or three decades ago Sotomayor wouldn't have stood a chance at being confirmed, solely because of the color of her skin -- never mind her gender! Now, she is quite likely to be confirmed with relatively little controversy, and the only compromise is that the president has to be mum about some of his motives. How is that a "fallen" standard?!?
Posted by: James Sweet | May 27, 2009 1:49 PM
I do want to make clear that it is just fine -- and in fact, maybe even our responsibility -- to be vocal about how much it sucks that Obama can't be straight-up about this. Just because things are better than they have been in the past doesn't mean we should just excuse the problems of the present.
All I'm saying is, don't blame Obama for it. But please, by all means, go ahead and talk about how immature we are as a nation that we can't be up front about intentionally increasing diversity! I totally agree!
Posted by: James Sweet | May 27, 2009 1:52 PM
Tommykey @ # 12: The Republican Party is schizoid on immigration and Latinos.
Since Sotomayor's parents were born on an island that's been part of the USA for over a century, "immigration" is hardly the point - or wouldn't be, if we lived in a less ignorant and irrational society. However, since even the MCM (major corporate media) have been using the i-word regularly in Sotomayor stories, who could be surprised that the Repubs' knees jerk?
Posted by: Pierce R. Butler | May 27, 2009 2:00 PM
Here's the thing, James-- yes, politicians have lied throughout history, and that's completely normal, and so on. I just don't get why Obama should feel compelled to lie in this particular instance, when every American with a brain-- and certainly all of those Americans with a brain who voted for him in the first place-- almost certainly understands the point of aiming for diversity on the Supreme Court when nominating a justice. I mean, we're sitting around here talking about how we don't think it's a big deal....who, specifically, are we worried about that would think it's a big deal? Those conservatives who would already oppose anyone Obama nominates, anyway? If the lie is that transparent, and it doesn't actually change anything, then what's the point of saying it other than to make yourself transparently a liar?
Posted by: Gretchen | May 27, 2009 2:45 PM
Gretchen,
The article I mentioned above disputes your notion that our standards have fallen, suggesting that this has been normal in SupCt appointments for a very long time.
Also, Machiavelli would specifically have approved of Obama's artful language in this case. So it's not precisely new.
That's not to say I disrespect your desire for blunt honesty, however. I share that ideal.
Posted by: James Hanley | May 27, 2009 2:47 PM
Sadly, even though it would be unwise for Republicans to attack a well-qualified, moderate Hispanic nominee, they will do so. And even though she is not a radical "activist" judge, they will say that she is.
Not so sadly, that strategy will increase the marginalization of the Republican party.
Posted by: BaldApe | May 27, 2009 3:08 PM
The problem is Gretchen that this is unfortunately not an issue of logic. Even though it's an obvious, transparent lie, if Obama came out and said that he looked at all the qualified people and picked out the hispanic lady, there would be a media circus for weeks.
Would we be a better society if the media wouldn't jump on such a "story"? Yep. But we're not, and historically there's very few examples of politicians and societies that have accepted the kind of blunt language that some of us prefer. I don't know what Obama's personal views are on blunt speaking, but whatever his preferences he knows what he has to say politically.
Posted by: Coriolis | May 27, 2009 3:09 PM
BaldApe:
What you speak of is the "Pre-50's Washing Machine Gambit" wherein a GOPrick is conditioned to, when he sees a dick in the wringer, turn the crank--even if (or, perhaps, especially) if it's his own.
Posted by: democommie | May 27, 2009 3:16 PM
Thank you, Lee, for pointing out that pathetic bit of faux-nativist bigotry from National Review (and please, let's call it "National Review," instead of insulting a decent military-intelligence organization with the same initials). Oh, and I just LOVE this gem of win from that article:
So, are we supposed to use the Spanish pronunciation, so-toe-my-OR, or the natural English pronunciation, SO-tuh-my-er, like Niedermeyer?
Hello? Niedermeyer sounds like a German name. Did the author of this article mean to say "the natural German pronunciation?" Or was he deliberately satirizing his employers' bigotry?
It's gonna be hilarious to watch the party of people with names like O'Reilly, Limbaugh, Horowitz, Feith, D'Souza, Ponnoru, and Jindhal complain about Sotomayor's "foreign" name.
Posted by: Raging Bee | May 27, 2009 3:32 PM
@Gretchen
A politician not being completely candid? Oh no! Are you also going to tell me I really CAN'T save a bunch of money on my car insurance?
Oh, the horror! Except not really. And I would'n't worry about falling standards. Politicians have been talking like this for centuries, if not millenia.
Posted by: eric | May 27, 2009 4:03 PM
Raging Bee:
If one's name isn't actually in some aboriginal pre-european invasion language it IS foreign.
Posted by: democommie | May 27, 2009 4:54 PM
D-commie: take the time trip back far enough and all human language is foreign on American soils. No bald apes evolved here, it is just a matter of what time their group migrated. How long need ones ancestors camped on a continent before they can claim to be "native"?
Posted by: jbixby | May 27, 2009 5:38 PM
Any SCOTUS nominee who wasn't 100% against abortion would be attacked by the Rethuglicans.
Posted by: Adrienne | May 27, 2009 5:43 PM
I loved the Krikorian piece. "Normally, we defer to the person whose name we're pronouncing, but I think that this time we should make an exception and single out Judge Sotomayor for abuse."
Just think of what would happen if Obama had nominated somebody with a name like Nguyen.
Posted by: Troublesome Frog | May 27, 2009 7:21 PM
Troublesome Frog:
My brother is married to a lovely woman whose name is Ngyuen (I'm not sure if that's what you meant); she pronounces it "Wynn".
Posted by: democommie | May 27, 2009 9:31 PM
@Adrienne- thank you for your intricate insight.
Posted by: Robo | May 27, 2009 9:45 PM
@Gretchen: You ask who we are worried about pissing off... Well, I've got one group: The many, many, many former Republicans who have turned their back on the GOP at some point in the last few years. The Sunday NYT reported that the GOP was going to oppose the nominee in order to revitalize their coffers and get people back on board with their cobbled-together platform of lunacy. We don't want to make that any easier...
I dunno, I don't mean to get into this big a thing about it. Maybe you're right, that in the end there isn't all that much to worry about. I'm just saying I think it is quite defensible for Obama to stay mum on that point, and certainly not some sign of declining standards or something... it's politics as usual, and probably not even the most craven political maneuver the Obama administration has done recently (the reversal on releasing the Abu Ghraib photos comes to mind...)
Posted by: James Sweet | May 27, 2009 9:47 PM
In the novel Cryptonomicon, there was a character by the name of Jean Nguyen... who pronounced it "John Wayne". heh...
Posted by: James Sweet | May 27, 2009 9:50 PM
Maybe I conflated with things said at places like Pandagon, but didn't Obama all but say that he was looking specifically at broadening the demographics on the court?
Posted by: Brian X | May 27, 2009 10:05 PM
I think that the White House insists on that point so strongly because to not do so would leave ground open for the typical misogynistic types to yell about how she's just a woman benefiting from political favoritism. Nevermind that she paid her own way through and graduated at the top of the class from both Princeton and Yale, which pretty much makes her heads, shoulders, hips and toes above all her detractors; or that she's a widely respected, and, in a relative sense, seldomly overturned judge.
If Obama came out and said "She's one of many who were qualified, and she also happened to be a woman and Hispanic, and dammit, I just think the court needs to be more representative of the nation as a whole" then all we'd hear from the media is "Obama picks unqualified female justice solely on race."
Posted by: Julian | May 27, 2009 11:51 PM
Beyond this, isn't every government appointee "The best woman/man for the job"? We can't forget the conventional ego massaging in Union public life here.
Posted by: Julian | May 27, 2009 11:55 PM
And called "activist" for it to boot.
Posted by: BaldApe | May 28, 2009 7:53 AM
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.
Nobody ever considered it a coincidence when the top candidates for a Supreme Court seat were all men, though...
Posted by: N.C. | May 28, 2009 8:55 AM
No, I meant Nguyen. I'm also married to a lovely woman whose name (was) Nguyen. "Wynn" is probably as close as those of us who don't speak Vietnamese natively will ever get. :)
A few years before we were married, she accidentally had a Safeway card issued with the name "Nsuyen." It's fun to watch people freak out as they try to figure out how to pronounce that. Just when you think you have "Nguyen" figured out, we drop the bomb on you.
Posted by: Troublesome Frog | May 28, 2009 12:09 PM
TF @38, I have Betty Nguyen of CNN to thank for educating me how to pronounce that. I had always wondered before but now I know.
Posted by: Jon Lester | May 28, 2009 7:27 PM
IIRC isn't Niedermeyer quite similar to Niedermayer the incipient wingnut ROTC occifer from Animal House who the wrap-up tells us was fragged by his own troops in Vietnam?
I have yet to see a wingnut argument which proceeds from the merits of her qualifications without first taking a detour into the foul recesses of the wingnut hive-mind and ends up obsessing about her ethnicity or gender or the combination of them which they disparagingly refer to as a twofer. I'm wondering if there's anybody over there capable of constructing such an argument. The hearings ought to make for some interesting listening as the various wingnuts fall all over themselves trying to justify their eventual vote for her confirmation without really pissing off the tribal elders such as oxyrush et al.
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