Not surprisingly, a chorus of opposition is developing around likely Obama nominee to the Supreme Court, Second Court of Appeals Judge Sonia Sotomayor. As I've discussed elsewhere, Stuart Taylor on the right has tried to paint Sotomayor as an "extremely controversial" extremist. His argument is exactly as serious as you'd expect from someone who rails against "judicial activism" and "partisan judging" and then has fulsome praise for Bush v. Gore. Suffice it to say that if he wants to paint Sotomayor as an extremist, he's going to have to do better than saying that she disagrees with him about affirmative action.
Jeffrey Rosen, meanwhile, attempts to make a case from the left. But again, it's pretty clear that he doesn't have the goods. As Eric Boehlert points out, Rosen's admission (buried near the end) that "I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths" pretty much undoes his whole argument. Given this, his random anecdotes from a few clerks aren't exactly convincing evidence. Most of the complaints are trivial, and the stray assertion that the Yale Law grad "isn't that smart" isn't substantiated nearly enough to be taken seriously.
Most dismaying, like Taylor, Rosen places a great deal of emphasis on the unpublished opinion in the New Haven affirmative action case. But he also concedes that "the extent of Sotomayor's involvement in the opinion itself is not publicly known." So, again, the case seems to be that Sotomayor will vote on affirmative action cases ... the way that the Court's moderate liberals already vote on them. This is pretty weak tea.
None of this to say that Sotomayor is necessarily Obama's best choice, or even a very good one. Perhaps a systematic analysis of her opinions would convince me that she isn't at least the latter. But until then, Sotomayor seems like a very solid nominee to me.
--Scott Lemieux
