This column originally appeared on The Fox Forum on August 7, 2009.
Sonia Sotomayor is the Supreme Court’s newest justice. And now the fallout begins.
The confirmation of Sonia Sotomayor to the U.S. Supreme Court on Thursday will impact this nation for decades, on issues ranging from free speech to racial preferences to gun rights. It will also become a major issue in the 2010 midterm elections and the 2012 presidential election, an issue that more likely than not will backfire on Barack Obama to the benefit of the Republican Party.
Barack Obama was looking for a big political win from the Sotomayor confirmation. He chose a Hispanic woman with an interesting personal story. His staff and congressional allies then tried to make this nomination all about race and gender, playing identity politics and openly declaring that Republicans would pay a price if they did not vote for this nominee because of her gender and skin color.
But Thursday’s vote was not a win for the White House. The latest Zogby poll showed that Americans were tied 49% to 49% on whether Sotomayor should be confirmed. That’s worse than any Supreme Court nominee in recent history except for Harriet Miers. Even Judge Robert Bork had less opposition, with those favoring his confirmation exceeding those who opposed him by a three-percent margin.
Even among Hispanics, the group Obama was targeting with this nomination, a Gallup poll shows she lacks majority support, with 47% in favor and 43% opposed. Moreover, Zogby shows that a majority of independents oppose her, as do small business owners.
The final confirmation vote of 68 – 31, with poll numbers like these, means that President Obama has not scored the big win that he wanted with this nomination by playing racial politics. It’s a mixed result at best, and if her rulings from the bench show a clear liberal philosophy then the end result will be negative for the White House and Democrats.
President Obama chose to pick a fight by nominating a controversial nominee. Sotomayor’s speeches and court opinions on various issues have been unpopular and contentious, such as her racial preference case that the Supreme Court recently overturned in Ricci v. DeStefano. Obama passed over other female judges and scholars who are considered leading lights when it comes to liberal legal philosophy in naming Sotomayor, but now will likely not reap any benefits from his choice.
Now the fallout begins. The president and his party, and especially Senate Democrats from red states, will now have to answer for Sotomayor if she proves true to expectations as a solidly-liberal justice.
By far, Justice Sotomayor’s most troubling issue is the Second Amendment right to bear arms. Her two gun-rights decisions, one holding that the right to bear arms does not apply in any way to states and the other that the Second Amendment is not a fundamental right, prompted gun-rights leaders to fiercely oppose her nomination and even persuaded the National Rifle Association to come out against her.
Next year the Supreme Court is almost certain to take up the question of whether the Second Amendment applies to the states. It’s likely that the Court will not take Sotomayor’s case from the Second Circuit, Maloney v. Cuomo, because it’s not a good case to present such an important issue and doesn’t even involve guns.
Instead the Court is likely to go with NRA v. Chicago from the Seventh Circuit, a picture-perfect case challenging the Chicago gun ban from Barack Obama’s home town. This ban is every bit as severe as the D.C. gun ban struck down by the Court in 2008 and is also one that President Obama openly supports.
If the Court takes the Maloney case, then we might not know Justice Sotomayor’s true beliefs on the Second Amendment for years, because she would likely recuse herself from having any part in that case. NRA v. Chicago, by contrast, would prove once and for all what she really thinks about the constitutional right to bear arms.
We will not have long to wait to see what kind of jurist Sonia Sotomayor will be on the High Court. On Sept. 9, the Supreme Court will consider a major free speech case in Citizens United v. FEC, where America’s most accomplished Supreme Court lawyer, former Solicitor General Ted Olson, will take on the Obama Justice Department. A decision in that case is expected before the Court’s new term starts on Oct. 5.
Sonia Sotomayor now becomes the newest justice on the Supreme Court. The president and her supporters say she is a mainstream moderate, while her opponents say she’s a liberal activist. We’ll know soon enough, as this issue heats up for next year’s election.