Abe Fortas Jurist

The process of selecting appointees to the Supreme Court differs from lower federal court judges, who are selected by presidents based on connections with senior U.S. Senators from key states. While interest groups and ill-informed pundits are scrambling to describe her with isolated statments, inferences, and conjecture, we should stop and take a more analytical examination of Sotomayor's judicial experience and record.

Sotomayor Has a Long Record of Federal Jurisprudence

It is clear that Sotomayor is more than qualified to serve as an associate justice of the Supreme Court. Having obtained an AB in History (summa cum laude) from Princeton University in 1976, she graduated from Yale Law School in 1979 where she was editor of the Yale Law Journal. After serving as an assistant district attorney in New York (1979 to 1984) and in private practice (1984 to 1992), Sotomayor was nominated by President George HW Bush and confirmed by the Senate to serve as a federal judge in New York's Southern U.S. District (1992 to 1997). Here, she issued several key decisions in such cases as 1995 injunction against Major League Baseball, which ended the 1994 strike, and a ruling allowing the Wall Street Journal to publish Clinton aide Vince Foster's suicide note.

President Clinton nominated her to the U.S. Court of Appeals for the Second Circuit in 1997 and was confirmed by the Senate in 1998 in a 67-29 vote with strong support from Democrats including 50% support from Republicans. Sotomayor has also taught as an Adjunct Professor at New York University Law School and as a lecturer at Columbia Law School. As an appellate court judge although she issued no major decisions on such controversial issues as abortion, capital punishment, or national security, she has a liberal track record in cases involving defendant rights, workplace discrimination, and civil rights. However, the American Bar Association considers Sotomayor to be a political centrist even though others consider her to be a relatively liberal jurist.

The Politicization of Supreme Court Appointments

While the selection of Supreme Court nominees originated as a private affair, handled almost entirely by the president, the attorney general, and his closest advisers, the contemporary selection process is a reflection of how much the political landscape has influenced the recruitment of candidates. Ever since FDR's creation of the Office of Legal Counsel in the Justice Department, the OLC has become a resource for Justice department attorneys to generate lists of nominees to the Supreme Court and lower federal courts. However, the OLC became highly politicized in the recruitment of nominees after President Reagan began using it to vet very conservative jurists for appointment to federal courts including the Supreme Court. Moreover, the role of the president's counsel has resulted in the White House staff becoming more influential in the selection process.

Furthermore, given there are over 850 federal judgeships and that presidents regularly fill up to 40 vacancies on federal courts each year, there are great opportunities for chief executives to influence judicial decisions. Federal appellate judges who appear ideologically consistent with the president's policy agenda are likely to be considered for appointment to the Supreme Court especially if the political makeup of Congress favors the president as it does Obama today with 59 Democratic senators. Since the Supreme Court has been a shaper of public policy since it claimed the power of judicial review for itself in Marbury v. Madison (1803), all presidents, regardless of political party, want "activist" justices who agree with their preferred political agendas. Since this landmark case, the Supreme Court has evolved into a policymaking role, practicing at times liberal as well as conservative judicial activism.

In addition, the increased influence of interest groups and the media means that organized interests are likely to be mobilized to support or oppose particular nominees. Also, advances in legal research programs (Lexis-Nexis/Westlaw) and technology mean that eleventh-hour revelations are a thing of the past; for example, when the Senate discovered that President Nixon's Supreme Court nominee G. Harold Carswell had given a speech at a Ku Klux Klan rally, it torpedoed his appointment at the last minute. Such shocking discoveries are unlikely to occur in the computer age.

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