Sotomayor Is a Shoo-In

Like another Democratic president a generation ago with big ears, big ambitions and an outsider's ambivalence about the old (white) American establishment, Barack Obama always yearns to make history, especially by expanding the social circle of power. The confirmation hearings for Judge Sonia Sotomayor, which begin this week, are about that yearning and that desire for demographic expansion. So the hearings aren't only, or even primarily, about Sotomayor per se. At issue are Obama's view of history and his judgment in picking this Hispanic woman as an expression of his vision. As Sotomayor is judged, so, too, will Obama be. If she keeps her cool and her answers earnestly and learnedly vague, she is a shoo-in—and perhaps 10 of 40 Republicans will vote for her. There will be a problem, or at least some drama, only if she gets into a Five Borough Fist Fight over any suggestion that she is not qualified or hampered (as opposed to ennobled) by her ethnicity.

My sense from talking to friends and colleagues and briefers going all the way back to Yale Law School: she is far too smart, far too controlled, and far too ambitious to take the bait. She has not been afraid to use her ethnic background to argue for inclusiveness—for herself and for others—but once near or inside the door she is not an angry agitator. Like everybody else with brains and drive in America, she just wants a seat at the table.

In nominating Sotomayor, the president has expressly and implicitly said that a great Supreme Court is not merely one full of exquisite legal minds—the ones most adept at abstract legal reasoning—but a court in which justices also bring with them to their chambers a sense of the breadth and diversity of all of American life, its varying economic strata and ethnic enclaves. Diversity—especially in today's poly-everything America; especially on a planet ever more wired and globally immediate—is not only a good thing, but also a necessary thing. That was, after all, the all-caps subtext of Obama's presidential campaign. He often said that "we are the change we've been waiting for," and he was speaking in racial as well as partisan or generational terms. Everyone knew it. A generation earlier in 1967, Democrat Lyndon Johnson chose to nominate Thurgood Marshall, courtroom mastermind of the civil rights movement, for a seat on the Supreme Court. Marshall was confirmed, becoming the first African-American justice. LBJ congratulated himself—and Marshall—on making history. When I first visited then-senator Obama's office in 2005, I noticed that the wall closest to his desk was dominated by a large oil painting of Marshall, a hero then and a governing example now.

No one who is familiar with Sotomayor or her record as a student, lawyer or judge thinks that she is unqualified for the court. Like Obama, she is the product of the dawn of the affirmative-action era in the Ivy League. And like Obama, she is proof that the policy could perform as advertised with the right people. All of which is why her ruling in the New Haven firefighter reverse-discrimination case—and the current Supreme Court's rejection of it—will be central to whatever theatrical tension there is likely to be. But Sotomayor's justified faith in affirmative action is not knee jerk or formulaic—and, in any case, is only one part of the larger culture she represents.

Culture, in fact, is what could produce any real friction to come during the hearings on Capitol Hill. Put simply, there will be two American political cultures on display. One is defined by the president, his nominee, and by the Democratic members of the Senate Judiciary Committee. Their collective portrait: big-city sidewalks, inclusive of women and a range of religions. Sotomayor is Catholic, but divorced, childless and not devout; she glories in her New York life and her Puerto Rican roots in the city and in her family's home island. The Republicans who will try to confront her come from another planet: states and places in which the dominant culture is, for want of a better term, traditional: Alabama, Utah, Iowa, Arizona, South Carolina, Texas and Oklahoma. All but one of these states (Iowa) voted for the McCain-Palin ticket. These are all places in which Sotomayor, with her Ivy degrees and metropolitan tastes, would be regarded, for want of term, as exotic. My bet is that this culture clash will end with both sides expressing grudging appreciation for each other, and the high court will wind up with its first Hispanic justice: an able, hardworking daughter of Puerto Rico and the city of New York. History will be made.

© 2009