The nomination of federal appeals-court judge Sonia Sotomayor to a seat on the US Supreme Court sets the stage for a national debate over the appropriate role of a high-court justice and whether Judge Sotomayor is the best person for the job.
But the debate may ultimately be far less aggressive than many conservative stalwarts would like. Short of a revelation of personal scandal, Sotomayor is almost certain to be confirmed with a solid Democratic majority in the Senate. And an aggressive campaign against her by Republicans could harm the party, already reeling from a poor performance last November and a decline in support among Hispanics.
Senate Republicans responded cautiously on Tuesday to the Sotomayor announcement, calling for "fair" hearings rather than launching aggressive attacks.
"We will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law evenhandedly, despite their own feelings or personal or political preferences," said Republican Senate leader Mitch McConnell of Kentucky.
"The American people deserve a full and thoughtful debate about the proper role of a judge in the American legal system," added Sen. Jeff Sessions of Alabama, the senior Republican on the Judiciary Committee.
Republicans urged the Obama administration and Senate Democrats not to rush the nomination into hearings. They said they want time to undertake a complete investigation.
With more than 16 years on the federal bench as both a trial judge and appeals-court judge and some 450 judicial decisions, Sotomayor has no shortage of material for both sides to investigate for evidence of bias or brilliance.
The Sotomayor nomination represents the antithesis of the Republican Supreme Court strategy of nominating a "stealth candidate." Not only is Sotomayor's judicial record long and open, but she has not been shy about expressing her views in public forums where her remarks might be quoted, recorded, or videotaped.
These, too, are expected to provide opportunities in the Senate hearings to probe bias or brilliance.
One often-cited episode occurred during a 2005 panel discussion at Duke University Law School in Durham, N.C. "All of the legal defense funds out there, they're looking for people with court-of-appeals experience, because it is – court of appeals is where policy is made," Sotomayor said.
"I know this is on tape, and I should never say that, because we don't make law, I know. [The audience laughs.] OK, I know, I know. I'm not promoting it, I'm not advocating it, I'm, you know. Um. OK."
Critics say the comment suggests that Sotomayor may feel an entitlement to use her lifetime appointment and judicial power to work as a legal activist to shape the law and determine winners and losers in ways dictated by personal or political ideology.
The Senate hearings will give Sotomayor an opportunity to respond more fully to critics and explain precisely what she meant.
In announcing Sotomayor's nomination at a White House ceremony on Tuesday, President Obama discussed his requirements for a Supreme Court selection. In addition to a rigorous intellect and mastery of the law, his nominee must have a respect for judicial restraint, he said. Supreme Court justices must have "an understanding that a judge's job is to interpret, not make law – to approach decisions without any particular ideology or agenda – but rather a commitment to impartial justice, a respect for precedent, and a determination to fully apply the law to the facts at hand," Mr. Obama said.
The president also said he was looking for something additional in his nominee: life experience "that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live."
Obama said such life experience is "a necessary ingredient in the kind of justice we need on the Supreme Court."
Sotomayor has such experience, he said. She's worked as a big-city prosecutor and corporate litigator, as a federal trial judge for six years, and as an appeals-court judge for 10 years.
As a prosecutor in New York City, Sotomayor "learned what crime can do to a family and a community, and what it takes to fight it," Obama said. "It's a career that has given her not only a sweeping overview of the American judicial system, but a practical understanding of how the law works in the everyday lives of the American people."
Her other major qualification, the president said, is her compelling life story. Her father died when she was 9. She and her brother were raised by her mother in a public housing project in the Bronx, not far from Yankee Stadium. She attended Catholic school and then Princeton and Yale Law School.
"Along the way, she's faced down barriers, overcome the odds, lived out the American dream that brought her parents here [from Puerto Rico] so long ago," Obama said, alluding to a personal history with clear parallels to his own. "And even as she has accomplished so much in her life, she has never forgotten where she began, never lost touch with the community that supported her."
He added, "What Sonia will bring to the court is not only the knowledge and experience acquired over a course of a brilliant legal career, but the wisdom accumulated from an inspiring life's journey."
The comment dovetails with a second area that Sotomayor will be expected to address in her confirmation hearings. The judge has been criticized for comments she made in a 2002 speech at the University of California, Berkeley, School of Law. She was speaking about the importance of judicial diversity.
"Whether born from experience or inherent physiological or cultural differences,… our gender and national origins may and will make a difference in our judging," she said.
In her talk, she disagreed with an approach to judging expressed by former Justice Sandra Day O'Connor, the first woman to serve on the US Supreme Court. Justice O'Connor was frequently quoted as saying that a wise old man and a wise old woman would reach the same conclusion in deciding cases.
"I'm not so sure that I agree with the statement," Sotomayor said. "I would hope a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
This comment, combined with her Duke University comment, will probably form the nucleus of any attempt to defeat Sotomayor's nomination. At a minimum, it will spark an exploration of different visions of the role of judges among Republicans and Democrats, jurists and politicians.
White House officials encouraged the examination of Sotomayor and her statements in the broader context. "If one looks closely at [nearly] 17 years of judicial opinions, you'll see that this is not someone that you can reasonably argue advocates or is engaged in legislating from the bench," Mr. Gibbs said.
Ultimately, it will be up to Sotomayor to defend her nomination. She began that task on Tuesday with her first public comments.
She cited her work as a prosecutor, corporate lawyer, trial judge, and appeals-court judge. "This wealth of experiences, personal and professional, helped me appreciate the variety of perspectives that present themselves in every case that I hear," she said. "I strive never to forget the real-world consequences of my decisions on individuals, businesses, and government."
Sotomayor added: "I hope that as the Senate and the American people learn more about me, they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences."