Here's another item for the "Never, Never Do This" file":
President Obama’s nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House. Sotomayor has sterling credentials: Princeton, Yale Law School, former prosecutor, and federal trial and appellate judge. But credentials do not an excellent justice make. Justice Souter, whom Sotomayor would replace, had an equally fine c.v., but turned out to be a weak force on the high court.
Obama had some truly outstanding legal intellectuals and judges to choose from—Cass Sunstein, Elena Kagan, and Diane Wood come immediately to mind. The White House chose a judge distinguished from the other members of that list only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.
Sotomayor’s record on the bench, at first glance, appears undistinguished. She will not bring to the table the firepower that many liberal academics are asking for. There are no opinions that suggest she would change the direction of constitutional law as have Antonin Scalia and Clarence Thomas on the Supreme Court, or Robert Bork and Richard Posner on the appeals courts. Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.
Personal to the American Enterprise Institute, because I know you just hang on my every word:
When you think John Yoo, what image comes first to mind? Thoughtful constitutional scholarship and commentary? Or a certain memo? See, after he pissed all over the Constitution in such an unambiguous and very public way, his opinion and attitude toward the document is, well, sort of established. Y'know? So...
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