Obama is set to announce his replacement for Souter this morning, and insiders have indicated that he intends to nominate Sonia Sotomayor, a federal judge on the United States Court of Appeals, the Second Circuit. Democrats might like the pick, but some Republicans have already intimated that they might be gearing up for a filibustery fight.
Sotomayor represents one a version of a fairytale story, a kind of textbook example of what "The American Dream" is supposed to mean. She grew up in a public housing project complex in New York City and was raised by Puerto Rican migrants in the South Bronx just a few years before a Diasporic form of vernacular music, hip-hop, concretized into something globally marketable along that same neighborhood's sidewalk space. Sotomayor lost her dad before she became a teenager, and her mother raised the family alone. Sotomayor still thrived.
She went to Princeton and then Yale Law School. She received her first important judgeship in 1991, nominated to the the United States District Court for the Southern District of New York by President George H. W. Bush.
CNN has been representing this choice as a pretty smart pick that "should" sail fairly easily through the nomination process. She has the right pedigree and is an important demonstration of ethnic inclusion (not to mention a Supreme Court first) as a Puerto Rican woman.
But detractors are calling her an "activist judge" and linking that label to some comments she made at Duke University in 2004, when she allegedly claimed that "the United States Court of Appeals is where policy is made." She is also supposed to have said that she "can't disregard ethnicity or gender as a judge." All this, and Obama made those "cryptic" statements about wanting a judge with "empathy." For some, these are some serious red flags.
I've already tried to push back (here on Brainstorm) against the nonsensical and decidedly political claim that some judges are activists while others are not. That strikes me as a spurious and disingenuous distinction. Usually, such accusers want to consider certain judges inappropriately activist simply because they don't agree with the accuser's politics.
We are sure to get an extended round of debates about Sotomayor's nomination, debates that will surely be organized around this discussion of judicial activism. But let's not get caught up in this silliness. All judges actively interpret the Constitution. It is not a self-evident document that simply and eloquently speaks for itself, a sentient being that some judges passively overhear, listening for its oracular declarations, while others distortingly ventriloquize. The distinction is nonsense. And it is always an unabashedly political move to call the other side exclusively political. For folks on both sides, it is always about what a nominee's politics are, not whether or not she has them.