Gunning For Sotomayor

I am inclined to agree with Christy that Sonia Sotomayor is the most likely Obama nominee, given her compelling personal story and what seems to a moderate liberal record. Stuart Taylor, however, asserts that:

…the Republicans could bleed him some politically if he made an exceptionally controversial pick such as Sonia Sotomayor, a federal appeals court judge based in New York.

Excepitonally controversial? A long-serving (initially Republican-appointed) federal judge who rose from projects in the Bronx to Yale Law? Whose record is, as far as I can tell, if anything more moderate than other frontrunners like Wood and Kagan? So what’s the evidence? Well:

There is a widespread perception on the right and among some moderates who have seen her close up that she is far more liberal than anyone now on the Court. (Some conservatives claim she masquerades as a moderate because she is running for the Court.)

If you read that last sentence carefully, it seems to be a nicely unfalsifiable claim that Sotomayor’s record, while moderates, hides some sort of secret liberal agenda underneath the robes. Oh. And, horrors, she may be somewhat more liberal than other members on a court where the most liberal pole is “Rockefeller Republican.” And this evidence comes from people with an obvious interest in undermining a nominee who looks almost impossible to stop, which certainly wouldn’t lead Taylor to question their motives, heavens no. At any rate, I’m sure these assertions are about as convincing as his claims that Sam Alito was a moderate who would “disappoint conservatives.”

After this silliness, we get to the heart of the issue — Taylor doesn’t like Sotomayor because she disagrees with Stuart Taylor about affirmative action. This is, of course, a field of “acceptable” activism in which conservatives are free to abandon long-standing theoretical commitments to impose conservative policy outcomes on public officials.

Perhaps her biggest problem is her vote in the potentially huge Ricci reverse-discrimination case in New Haven that was heard at the Supreme Court last week. It was an extremely pro-reverse discrimination decision and appeared sneakily (if unsuccessfully) designed to escape notice. And the Supremes seem very likely to reverse it (probably 5-4, with Kennedy joining the conservative bloc), possibly with a good whack at the lower court decision.

Ah, yes, so the shocking news is that Sotomayor issues a plausible, mainstream liberal vote in an affirmative action case, one plausible enough to get 4 votes at the Supreme Court. But…with a good whack! I doubt it will be as good a wack as the Casey plurality gave then-Judge Alito’s claim that states could force women to notify their husbands before seeking an abortion, but funny, I don’t recall Taylor talking about what a political disaster that would be for Bush.

So, anyway, there’s nothing here to suggest that Sotomayor will actually be any more controversial than any other nominee. But Taylor’s contempt has to be considered a major point in her favor. And this is without mentioning her most compelling credential…