Obama To Pick Sonia Sotomayor To Replace Souter

Sonia Sotomayor was widely considered a front runner for replacing retiring Justice David Souter. She's a New Yorker, and is on the Second Circuit Court of Appeals.

And now, she's going to be nominated to be on the US Supreme Court. Sotomayor fits the kind of approach that President Obama seeks - a liberal interpretation of the US Constitution where the Constitution is a living breathing document. The case against her is pretty persuasive, but there is nothing that the GOP can do to derail this nomination.

The only way this nomination gets derailed is if the Obama Administration didn't pick up on details that will embarrass and suggest that Sotomayor is an inappropriate candidate for the Supreme Court. That's not all that far fetched given the way that the Obama Administration has repeatedly botched nominations for a host of positions, repeatedly selecting tax cheats and those with ethical flaps.

Still, even a tax problem would not likely derail matters as the Democrats have control of the Senate, and Sotomayor is a qualified jurist albeit one that I would not agree with. As I've previously pointed out, Obama's replacement of Souter would not change the ideological makeup of the bench, as Sotomayor would replace a liberal justice in Souter. It would take a shakeup among the conservative members of the court to have a fundamental shift on the bench.

It will be interesting to see how the confirmation procedure progresses and whether any skeletons are revealed.

UPDATE:
Stop the ACLU has video of Sotomayor ruminating on the role of judges on the bench.



She's an activist judge, but this isn't going to derail her confirmation. It should, however, be a rallying call for the GOP to realize that they've got to come up with a way to start winning back seats lost in Congress so that they can thwart future nominations and block Obama's domestic policy agenda.

UPDATE:
She ruled against a high school student's right to free speech based on statements made off school grounds - claiming that it was acceptable for the school to limit speech based on proper respect for authority. That's a bad decision, and undermines the right to free speech.

Other decisions of interest include upholding warrantless searches for ferry users to thwart terrorism.

Her reasoning on a major intellectual property case involving the New York Times was reversed. In 1997, she ruled that newspaper publishers did not violated copyright law by transferring the work of freelance authors to electronic databases (972 F. Supp. 804 (1997)). The Second Circuit later reversed her decision, and the US Supreme Court upheld the Second Circuit in a 7-2 decision against Sotomayor's position (Stevens and Breyer dissenting). (Tasini vs. New York Times, 533 U.S. 483 (2001).) Ginsberg wrote the majority decision.

That particular case was argued by two of the top IP lawyers in the nation:
Laurence H. Tribe (Argued the cause for the petitioners) and Laurence E. Gold (Argued the cause for the respondents).


Additional cases can be found here.

UPDATE:
Ilya Somin isn't impressed with Sotomayor, primarily because she hasn't developed an area of law in the way that other potential nominees were at the forefront of law such as Diane Wood and Elena Kagan. She's got the qualifications, as she's been on the Second Circuit for a decade, but it's not up to the same level of jurisprudence as Roberts, Alito, or even Ginsberg.

UPDATE:
Much is being made of the fact that this would be a historic pick. Nonsense. Every pick is historic. That's the role of the Supreme Court. What exactly is Sotomayor bringing to the table in terms of jurisprudence? Some are claiming that she's the first Hispanic on the Court, but that's not exactly true. Benjamin Cardozo was Hispanic (but the key demographic/ethnic classification for him was that he was the first Jewish member on the Supreme Court). She wouldn't be the first woman on the Court, but would be the first Hispanic woman. Frankly, the demographics/ethnic games on the Bench are troubling - and should be troubling to anyone who wants to make sure that the best qualified jurists are on the high court.

Her merits should be decided based on how she's ruled, and not that she considers herself a Newyorrican (a mashup of New York and Puerto Rican). Of course, even President Obama voted against a qualified jurist when he cast his vote against Sam Alito. He just wants the right kind of jurist on the bench. That's his right as President. It doesn't mean that the GOP has to play nice. Aggressive questioning should be the name of the game, just as the Democrats did to President Bush's nominees.

UPDATE:
Don Surber notes a rumor that Sotomayor doesn't have backing of nine Democrats in the Senate, and that this is likely to result in a second name being proffered. Until I see more specific reporting on this, I would discount such rumor mongering.

The Souter Retirement

The announcement yesterday at Justice David Souter is retiring shouldn't surprise anyone. It had been expected that he would retire at some point during President Obama's term.

This just provides an early glimpse in to Obama's choice and direction for the Supreme Court. Expect him to replace Souter with another liberal on the court.

In other words, don't expect the court's direction to change. Souter was already on the liberal side of the court and his retirement doesn't change that calculus.

Neither the Supreme Court nor the White House would confirm the likely opening on the bench. "The president has not received a formal communication from Justice Souter, who deserves the right to make his own announcement," a White House aide said Friday.

Souter's retirement is unlikely to alter the ideological balance on the closely divided court because Obama is almost certain to replace the liberal-leaning justice with someone with similar views.

But the vacancy could lead to another woman on the bench to join Justice Ruth Bader Ginsburg, currently the court's only woman.

Souter has indicated in the past that he wanted to leave Washington and return to his native New Hampshire.

At 69, Souter is much younger than either Ginsburg, 76, or Justice John Paul Stevens, 89, the other two liberal justices whose names have been mentioned as possible retirees. Yet those justices have given no indication they intend to retire soon and Ginsburg said she plans to serve into her 80s despite her recent surgery for pancreatic cancer.

Even should Ginsberg or Stevens retire, the ideological split on the bench wouldn't change. It would take the retirement of Anthony Kennedy or something unexpected from Antonin Scalia,
Clarence Thomas, Chief Justice Roberts, or Sam Alito in order for the balance of the court to tip to the left. Right now, Kennedy is the swing vote on most issues.

MSNBC also floats possible choices for Souter's replacement:

The Associated Press reported that potential replacements include recently confirmed Solicitor General Elena Kagan; U.S. Appeals Court Judges Sonya Sotomayor, Kim McLane Wardlaw, Sandra Lea Lynch and Diane Pamela Wood; and Leah Ward Sears, chief justice of the Georgia Supreme Court. The AP said men who have been mentioned as potential nominees include Massachusetts Gov. Deval Patrick, Harvard Law professor Cass Sunstein and U.S. District Judge Ruben Castillo of Chicago.

Sotomayor is a 2d Circuit Justice and she enjoys the support of Sen. Chuck Schumer and others as a possible replacement.

It will be interesting to see how the Obama Administration vets candidates given all their woes in handling the nomination process for all the other positions in government (including all those that remain unfilled, including Surgeon General and those at the Department of Treasury), to say nothing of the ethical, legal, and tax woes that have followed many of those nominees who actually were supposedly vetted.

UPDATE:
President Obama wants to find someone with an "independent" mind. That's his prerogative as President of the US, but that does not exactly warm the cockles of my heart given that independent means that whoever he selects will likely consider the US Constitution to be a living and breathing document that can be suitably altered to suit the political needs of those in charge. It means that those GOPers questioning the prospective nominees must ask questions about whether the nominee seeks economic justice on a variety of issues, even where the legislative branch has ruled to not allow such things (think slave reparations and economic redistribution).

Souter will retire at the end of the session, which means that this summer will be entertaining for those covering the Court and the nomination process.

It's also curious how many people expect Souter's replacement will be a woman. Why a woman? Why not the best qualified for the job? As noted in both the comments and above, there are distinguished jurists who could be nominated - the candidates' gender (or race or religion) shouldn't be a factor. Their legal qualifications should be paramount.