A constant refrain among defenders of Judge Sonia Sotomayor is that she is actually moderate. Ignore her insensitive statements suggesting that there could be physiological differences between ethnicities which contribute to “differences in logic and reasoning.” Ignore her lightly mocking the idea that judges don’t “make law.” Ignore her dismissing the suggestion that judges can be impartial in most cases, and suggesting that it is a disservice to the country for them to ignore biases. And certainly ignore her opinions: upholding discrimination against a white, learning disabled firefighter; declaring not only that the Second Amendment doesn’t apply to the states, but that weapons laws don’t even implicate fundamental rights; and finding it unlawful for states to restrict the ability of felons—even double murders currently in prison—to vote. No, ignore all of those things, she really is moderate.Among the scant evidence provided in support of this moderate thesis is the claim of “bipartisanship.” To wit, the liberal Coalition for Constitutional Values is running a TV ad promoting Sotomayor, which touts the true but misleading fact that she was “first appointed by George H. W. Bush in 1991.” (Interestingly, they don’t even mention that she was appointed by President Clinton to the Court of Appeals.) The clear implication is that the public should feel reassured that the ever open-minded Obama has lived up to his promise of bipartisanship even in his judicial picks.
Not quite. What the ad doesn’t reveal is that Sotomayor’s nomination to the District Court for the Southern District of New York had little, if anything, to do with presidential choice. It was in fact part of a political deal designed to strong-arm the Republicans into putting Democrats on the district court, at the peril of watching some of the president’s own nominations dwindle. Whether he thought Sotomayor was radical or not, President Bush had little choice but to nominate her.
Byron York gives an account of the deal that took place. First, he notes that district court nominations are much different in practice than other federal judicial nominations: “Senators, even those in the opposing party from the White House, wield great power over who is nominated to the district court seats in their own states.” Therefore it is not uncommon for senators to strike deals with those of the opposing party in order to prevent them from stalling the president’s judicial nominees. In 1991, when Sotomayor was put on the district court, the Senate was under Democrat control. The two New York senators, Democrat Daniel Patrick Moynihan and Republican Alphonse D’Amato, had reached an arrangement on district court nominations even before the Bush 1 administration. D’Amato would give Moynihan deference for one out of every four New York district court seats. Sotomayor was one of Moynihan’s chosen nominees.
“She was not our first choice,” said an official from the Bush 1 administration, “but she was someone who was, if we were going to get a nominee confirmed to that position — essentially someone we had to go with.”
Failing to acquiesce to Moynihan’s choice may have had grave consequences even for Bush’s higher court nominees. Robert Alt has pointed out that Moynihan was in the habit of stalling Bush’s circuit nominees if Republicans attempted to refuse his district court picks: “I’ve personally talked to judges stalled by Moynihan who he had nothing against…He just stalled them to make sure his [Democratic] nominees got pushed through.”
Unfortunately, we now see that another consequence of this deal is that it gives liberal groups cover to give the American public a false, moderate and “bipartisan” impression of Obama’s radical nominee.