Considering a Supreme Choice

President Barack Obama seized his first opportunity to reshape the U.S. Supreme Court this week, nominating Sonia Sotomayor to succeed retiring Justice David Souter. He made a shrewd choice, according to Jack Beermann, a School of Law professor.

If confirmed, the Bronx-born and -raised daughter of Puerto Rican parents would become the first Hispanic and third woman to serve on the nation’s highest court. Appointed to the U.S. District Court, Southern District of New York, by George H. W. Bush in 1992 and to the U.S. Court of Appeals for the Second Circuit by Bill Clinton in 1998, the Yale Law School graduate is a former New York assistant district attorney. Her rise from humble beginnings makes for an inspiring narrative, said Obama. But Beermann’s point is as much political as judicial: a Republican fight against the nomination could alienate both Latino and women voters, intensifying the GOP’s problems after recent electoral setbacks.

A Harry Elwood Warren Scholar at LAW, Beermann specializes in civil rights, administrative law, and federal courts.

BU Today: Is Sonia Sotomayor a good choice for the Supreme Court?
Beermann: For Barack Obama, she’s a great choice. She’s a veteran federal judge who has extensive experience as a prosecutor, so she’s been in a courtroom a lot, and has a good reputation. She also underscores the way in which the Obama administration has moved beyond traditional ethnic categories.

Was her appointment politically astute?
Sotomayor has been confirmed twice in the Senate already, and she was appointed to the District Court by a Republican president. That puts the Republicans in an awkward position should they try to mount strong opposition against her. So in that respect, she was a very wise decision. It’s pretty clear Obama didn’t want a fight over this nominee, which makes sense because if he ever has the opportunity to replace one of the more conservative members of the court with a liberal, there will be a huge uproar. Souter is a moderate, and Obama is replacing him with a moderate. He’s saving the fight for when it matters.

What are Sotomayor’s chances of confirmation?
Very strong; she’s been confirmed twice already and nothing has come up. Obviously the stakes are higher in a Supreme Court confirmation, and people opposed to a liberal justice are going to be looking for anything they can dig up to derail her appointment. But I don’t foresee any problems.

If confirmed, what impact will she have?
I think she may be a little less reserved than Souter. She will likely be a strong presence in oral arguments, which could shake up the dynamics a bit.

Souter generally sides with the liberals on 5-4 rulings. Is Sotomayor likely to alter the ideological balance?
I don’t think so, although it’s difficult to know what judges are going to be like when they get to the Supreme Court, because when they’re in lower courts, they’re following precedents. I would be surprised if the Obama administration wasn’t pretty confident that she’ll at least maintain the status quo set by Souter.

What message does choosing a Hispanic woman send about Obama’s promise to diversify Washington?
It sends the message that this is a new era. The governor of Massachusetts, the governor of New York, and the president of the United States are African-American. Would anyone have predicted this 30 years ago — or 20 years ago, even? I think we’re moving toward a point where a person’s gender or race isn’t going to be noteworthy. And by making Sotomayor their first nomination to the Supreme Court, the Obama administration is sending the message that they are happy to be taking part in this change.

What reaction should we expect from conservatives?
There will be some who say Sotomayor is too liberal, that she’ll legislate from the bench, but they believed that about Souter as well.

Can the Republicans afford to protest a Hispanic woman’s confirmation?
Not really. The Republicans are in a tough place because their leadership isn’t strong enough to push them in one direction or another. They’re still trying to pick themselves up and figure out what happened during the past four years. They have to decide whether they’re going to stick to super-conservative social issues or take a more libertarian viewpoint — more socially liberal but fiscally conservative.

Worldwide, many courts have higher percentages of women. Four of the nine members of Canada’s Supreme Court are women, including the chief justice. Why does the U.S. Supreme Court have such a gender imbalance?
I don’t know, but I think it’s moving in the right direction. Given the number of women in law school and in important positions in the legal profession, I predict that we’ll see more women appointed to the Supreme Court.

How likely is it that Obama will appoint any other justices?
No one has shown signs of being anxious to step down, so it’s unlikely he’ll appoint any this term. If he’s reelected, I think it’s probable some of the older justices, maybe Scalia or Thomas, might leave.

Vicky Waltz can be reached at vwaltz@bu.edu.