This editorial will appear in tomorrow’s print edition:
The Supreme Court may be the least democratic part of the U.S. government, but it is still only one step removed from democracy.
Because the Constitution vests the power to nominate justices in the executive, members of the court are chosen by multiple presidents over a period of decades. The result is a court that – very roughly – reflects the temper of the voters who pick occupants for the White House.
The current court is a case in point. America’s political culture has often been often described as "center right" (though the election of Barack Obama suggests a recent leftward shift). The makeup of the high court is in fact center right: four liberals, four conservatives, and one moderate conservative – Anthony Kennedy – who often wields the decisive vote.
This is the system created by the founders; by and large, it has prevented the court from becoming too detached from the citizenry.
That argues, normally, for the Senate to confirm the president’s choice – including the newly nominated Sonia Sotomayor.
Not all nominees deserve this deference. In some cases, they just don’t have what it takes. Such was the case with Harriet Miers, a nominee of George W. Bush who’d never served as a judge and had not earned the legal distinction one expects in a Supreme Court justice.
After that nomination flopped, Bush came back and offered Samuel Alito, who was clearly qualified. He was confirmed, as was the obviously qualified John Roberts, now serving as chief justice.
Unless some time bomb turns up in Sotomayor’s background, she too will deserve confirmation. She possesses the caliber of intellect and – as a long-serving federal judge – the range of experience the high court demands.
This is a political as well as a legal choice. Obama was courting the Hispanic and female vote by nominating a Latina. His critics are accusing him of trying to taint justice with identity politics.
Sotomayor herself once made an unfortunate comment that suggested a Hispanic woman makes for a better judge than a "white male." In reality, it all depends on who the Latina is and who the white male is. Or the black male. Or the white woman.
But the Constitution allows politics – the democratic ferment – to shape nomination decisions.
That argument aside, Sotomayor remains an eminently qualified jurist with ample scholarship and expertise for the job. George W. Bush never would have nominated her, just as Obama never would have nominated Roberts. She’ll almost certainly wind up serving alongside Roberts – on a court that continues to adjust to the nation’s ongoing evolution.