By nominating Judge Sonia Sotomayor to the Supreme Court, President Obama presents Republicans with a tough choice: They risk alienating women and Hispanics if they oppose Sotomayor — who would be the first Hispanic on the court — or alienating conservatives if they don't.
President Obama reached for history Tuesday, nominating to the Supreme Court a Hispanic woman with a powerful personal and professional narrative.
But Judge Sonia Sotomayor, who would be the first Hispanic and only the third woman to serve on the high court if confirmed, is destined to do much more for the nation's first African-American president than add a potent chapter to his legacy.
Politically, Obama's decision to name Sotomayor, 54, over other equally qualified but non-Hispanic women is viewed by many as a masterstroke.
His choice lays the groundwork for potential — and significant — long-term political benefits for the Democratic Party within the nation's fast-growing Hispanic community.
And he has delivered to Republicans — who had promised a fight over the nomination, despite their depleted influence on Capitol Hill — what amounts to a lose-lose situation: alienate much of the Hispanic community and a fair number of women, groups that have been increasingly turning away from the GOP, with a concerted effort to tear down a clearly qualified nominee. Or anger the party's own shrinking conservative base, which has historically been roused to action — and fundraising — by Supreme Court battles.
"I'm not a person to give the Republicans advice," says Mark Tushnet, a Harvard Law School professor, "but I would think it would be politically inadvisable to fight too hard."
"She's got the legal credentials to qualify for the Supreme Court, and nitpicking about things would be a mistake," he says.
Says Ramona Romero, president of the Hispanic Bar Association: "It's important for us to talk about what this means for all Americans: That we can all aspire to the highest offices in the land."
Selling The Nominee
Obama had said that he would look for a nominee who understands that justice "isn't about some abstract legal theory or footnotes in a case book." He has also cited his desire to name someone with empathy for "people's hopes and struggles."
In introducing Sotomayor Tuesday morning, the president strongly framed a life story that began in a South Bronx housing project where, guided by a devoted, widowed mother, she attended Catholic school, then won top honors at Princeton University and Yale Law School, where she was an editor of the Yale Law Journal.
Obama lauded Sotomayor's "mastery of the law" and her long and varied legal career as a prosecutor, corporate litigator, trial judge and appeals court judge for the past 11 years.
"She has never forgotten where she began," he said.
Anticipating attacks from the right, Sotomayor in her comments said she "strives never to forget the real-world consequences of my decisions on individuals, businesses and government" and described herself as an ordinary person blessed with extraordinary experiences.
It's that narrative that Republicans would have to chip away at — if they choose a battle during a time when "all the cards are sitting on the Democratic side," says Supreme Court historian David Alistair Yalof.
Opposition Focuses On Sotomayor's Ideology
The immediate conservative push-back against Sotomayor was muted.
Top GOP senators like John Cornyn of Texas repeated the theme that the Senate must ensure that Sotomayor will decide cases based on the law, rather than her own "personal politics, feelings and preferences."
In a brief statement, Republican Party Chairman Michael Steele said that Sotomayor's nomination provided a "perfect opportunity for America to have a thoughtful discussion about the role of the Supreme Court in our daily lives."
Those on the conservative right, however, are angling for something a little more assertive.
Wendy Long of the Judicial Confirmation Network characterized Sotomayor as a "liberal judicial activist," labeled as "terrible" her opinion in a racial discrimination case now before the Supreme Court, and criticized her for saying in the past that her experiences as a woman and a Latina "should affect" her legal decisions.
"Judge Sotomayor will allow her feelings and personal politics to stand in the way of basic fairness," Long says.
But in the current political climate, and with Democrats nearing a 60-vote filibuster-proof majority in the Senate, which holds the confirmation card, it appears unlikely that Republicans are going to spend much political capital on what would be an ugly, and largely fruitless, fight.
Sotomayor was confirmed in 1998 for the U.S. Court of Appeals for the 2nd Circuit by a Senate vote of 67-29. All Democrats and 25 Republicans — including seven still in the Senate, as well as now-Democratic Sen. Arlen Specter of Pennsylvania — voted for her.
Twenty-nine Republicans voted no, including 11 still in the Senate.
New Face, Same Balance
If confirmed, Sotomayor will make history. But her ascension would very likely have little effect on decisions rendered by the divided court.
A recent analysis of her opinions, says attorney Tom Goldstein, writing on SCOTUSblog, show her to be in essentially "the same ideological position" as the man she would replace, Justice David Souter.
The power would remain with the man in the middle, Justice Anthony Kennedy, the swing vote who sides most often with the court's four conservatives but also works with the four on the left side, too.
Lee Epstein, a professor at Northwestern University School of Law, with colleague Tonja Jacobi, has referred to Kennedy as the "super median," a justice so powerful that he exerts significant control over court decisions.
Given that any person nominated by Obama would be unlikely to change the ideology of the court — except, perhaps, on some narrow issue — the Sotomayor nomination became almost inevitable.
"My sense is that Obama reached a conclusion that he would be unable to find someone who could move Kennedy to the left, so he looked to other political considerations," says Neil Devins, a law and government professor at the College of William and Mary, where he's also the director of the law school's Institute of Bill of Rights Law.
"Could Diane Wood or Elena Kagan move Kennedy to positions more favorable to the Obama administration? If no, then he'd just be status-quoing things," Devins says.
Wood is an appeals court judge; Kagan is the nation's solicitor general. Both women were on Obama's Supreme Court short list.
But Stanford Law School Dean Larry Kramer argues that Sotomayor, though ethnically a first, is status quo herself – an appellate court judge who, bottom line, amounts to a "safe and predictable" choice.
Picking another judge for a high court already stocked with them suggests that Obama doesn't have fresh vision for the Supreme Court, Kramer says.
He would have preferred that Obama choose a governor, an elected official or a statesman or woman — "somebody who's had to deal with real-world complications," he says, "with experience in the political world."
Kramer says the Supreme Court justices he defines as great did not have judicial backgrounds, including the late Chief Justice Earl Warren. Warren, a former California governor and attorney general, brought together a divided court and issued landmark decisions that included Brown v. Board of Education, which banned public school segregation.
Reaction In Hispanic Community
The Hispanic National Bar Association's Romero said she got a call early Tuesday asking if she could be at the White House by 10 a.m.
She didn't have to ask why.
"I wasn't born yesterday," says Romero, who preferred to talk about Sotomayor's qualification, rather than her ethnic heritage.
"The president picked absolutely the best candidate — her education, her broad experience, and growing up in New York City in a family of modest means dealing with issues not currently reflected in the court," says Romero.
"She is not somebody who was born with a silver spoon in her mouth," Romero says.
Conservative Hispanics like the Rev. Miguel Rivera of the National Coalition of Latino Clergy and Christian Leaders say they recognize the historic significance of Obama's nomination but will push senators to question Sotomayor about her pro-abortion-rights stance, for example.
"We commend President Obama for considering a Latino nominee," Rivera says. "But putting aside ethnicities, it is very important for members of the Senate to engage in a strong debate to evaluate the nominee."
Does this represent a split in the Hispanic community?
"We hope not, we hope not," Rivera said. "But we are willing to support the possibility of a filibuster."
Obama wants his nominee confirmed by the opening of the Supreme Court's fall session. He is likely to get his wish.
"Absent there being some huge skeleton in her closet, or sounding unfit for the job during Senate confirmation hearings, it is inconceivable that she won't be confirmed," Devins says.
"Pragmatic Republicans are going to be forced to say: 'Can we stick another knife in our body when we know that she'll get confirmed anyway?' "