Michael Barone

Which leads to the second question: What would a Justice Sotomayor mean judicially? In a widely noted New Republic article, liberal analyst Jeffrey Rosen quoted former 2nd Circuit law clerks and observers as having reservations. One anonymous source said she was "not that smart and kind of a bully on the bench."

If that's a fair assessment, Justice Sotomayor might not fit in particularly well in a court whose current justices, by all accounts I've heard, have excellent personal relations with and respect for each other despite their sometimes sharp disagreements. Half a century ago, most justices came from political backgrounds -- this court's members brought distinguished records from academic life and appeals courts or have demonstrated similar high abilities in their opinions.

Rosen expresses the fear that in this company Sotomayor may not prove an effective advocate for her liberal views. Which way that cuts presumably depends on what you think of those views.

One case currently before the court may be on point. Several white firefighters and one Hispanic firefighter sued the city of New Haven for setting aside the results of an examination because no black firefighters qualified for promotion. The federal trial court ruled this did not violate civil rights statutes, and a three-judge panel of the 2nd Circuit, including Sotomayor, affirmed, without a written opinion. This looked to many like a stealth strategy to protect racial preferences from legal attack.

In this case, Sotomayor seemed to share the view of legal elites that racial preferences must be defended, even at the sacrifice of candor, against all attacks. But most Americans tend to agree with Martin Luther King that people should be judged by the content of their character rather than the color of their skin. The Supreme Court is expected to rule on this in June, probably just before Sotomayor's confirmation hearing. Is this an issue that Obama and the Democrats want to litigate in the court of public opinion?


Michael Barone

Michael Barone, senior political analyst for The Washington Examiner (www.washingtonexaminer.com), is a resident fellow at the American Enterprise Institute, a Fox News Channel contributor and a co-author of The Almanac of American Politics. To find out more about Michael Barone, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com. COPYRIGHT 2011 THE WASHINGTON EXAMINER. DISTRIBUTED BY CREATORS.COM