I was just part of a conference call that the White House held with law bloggers. There are a couple of takeaway points that may be of interest to readers following the nomination. First, Obama cited three criteria in choosing Sotomayor: 1) her intellectual capacity (as demonstrated in her sterling academic record, her success as an assistant district attorney, and her distinguished service as a federal judge); 2) her approach to judging based on her opinions, which represent a high level of craftsmanship and attention to detail; and 3) her compelling personal story, rising from poverty in the Bronx to Princeton to being an editor at the Yale Law Journal. This combination of factors will, I think, make her confirmation inevitable.
The way in which the White House seemingly intends to deal with the controversial Ricci affirmative action case was also interesting. The argument was that the (unanimous) panel in this case was simply applying clear 2nd Circuit precedent, and critics of "judicial activism" can't have it both ways -- whatever "judicial activism" means, it means deferring to more electorally accountable officials on an ambiguous constitutional question on which neither precedent nor "original understanding" favor the preferred conservative position. I hope this reflects a willingness to push back on feeble conservative tautologies about "judicial activism." Whatever conservative jurisprudence can be said to consist of in the era of Alito and Thomas, it's got nothing to do with "judicial restraint."
--Scott Lemieux
