Why Obama's Court Pick is Already a Winner

Choosing Sonia Sotomayor as his first nominee to the United States Supreme Court will allow Barack Obama to prove three important things. As a politician, he is not afraid of a fight. As a constitutional lawyer, he is willing and able to defend his conception of that living document. And as president, he is prepared to brush aside the phony consensus of Washington's gossipy elite.

When battle commences over the nomination of Sotomayor, a judge currently serving on New York's Second Circuit federal appeals court and a woman with working-class Puerto Rican roots in the Bronx, the president should welcome it, because he cannot lose politically. If he wins, as he almost certainly will, then he will have earned the gratitude of Hispanic voters across the country for putting their "first" on the nation's highest bench. If somehow he loses to a Republican filibuster, then those same voters will surely inflict their wrath on his adversaries.

Having chosen an affirmative-action candidate to chair the Republican National Committee (and another, years ago, to occupy a seat on the Supreme Court), GOP leaders could probably find a way to permit Sotomayor to ascend without mounting bitter, racially divisive opposition. A
Republican president, George Herbert Walker Bush, originally nominated her to the federal bench, with support from the two New York senators at the time, hard-line conservative Alfonse D'Amato and Daniel Patrick Moynihan, no doctrinaire liberal. Among the conservatives who voted to seat her on the Second Circuit was Sen. Orrin Hatch of Utah, without significant opposition.

But the same impulses that have long driven the Republican Party toward ethnic polarization and immigrant-bashing seem certain to infect its opposition to her -- in ways that can only benefit the Democrats and Mr. Obama in elections to come.

According to the conservative groups that will drive right-wing reaction to the Sotomayor choice, she is a "liberal activist." Even if that were true, it is fair to ask why Obama should not exercise the same prerogative that allowed George W. Bush to choose justices who reflected his perspective. After all, she is considerably more moderate in her thinking and practice than Chief Justice John Roberts -- and less "activist" than he has been so far, as outlined in a recent profile of the chief justice in The New Yorker.

The buzzword that the right has seized upon in seeking to discredit Obama's choice is "empathy," because the president said he hoped to select nominees who would display that quality in their jurisprudence. Of course, conservatives invoke the same emotional responses when they complain about judicial decisions they dislike -- such as the Kelo case decided by the Supreme Court several years ago, when blue-collar families lost their homes to the city of New London, Conn., for an economic development project.

Furious free-marketeers who felt that the justices in the majority had failed to empathize with local property owners demanded that local governments condemn their homes and hand them over to private developers.

Rather than empathy or practicality, according to the hard right, judges are supposed to reflect the "original intent" of the authors of the Constitution. Whatever their intent may have been, however, it certainly was not to perpetuate 18th-century laws and institutions on people living 300 years later. Otherwise the Founders would not have been geniuses but idiots who differed very little from the monarchs and despots they overthrew. Perhaps the president will have a chance to articulate a modern understanding of the Constitution and the intention of the founders during the struggle to confirm Ms. Sotomayor.

Finally, by choosing Sotomayor, the president demonstrated his disdain for the obnoxious whispering campaign against her that began in a dubious article in The New Republic, migrated to the National Review web site (which pronounced her "dumb and obnoxious") and predictably found its way onto the pages of The Washington Post. Only weeks ago, the participants in that campaign were congratulating themselves for killing her nomination.

Thankfully Obama ignored the decree of the capital's gossips and made up his own mind. Let this occasion be the first of many.

Joe Conason writes for the New York Observer.

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