OK, so Barack Obama's up for a fight: In picking Sonia Sotomayor for the Supreme Court, he went with the name on his short list most likely to rouse conservative opposition. Should we be surprised? Not really. His displeasure with the court's current direction was made clear during his years as a senator, when he voted against confirming Roberts and Alito.
A few quick points about why Obama appears comfortable with his nominee and believes she can be confirmed, followed by a few thoughts about the implications of her nomination for business law:
1. I predicted he'd choose someone with whom legal academia was familiar and comfortable. Indeed, Sotomayor has spent much of her legal career in a world not dissimilar to Obama's own: adjunct and lecturer posts at both NYU and Columbia law, foundation-supported public interest work, panels on diversity outreach and so on. Her output of nonjudicial writing may be sparse (highlight: "The Case for Puerto Rican Seabed Rights"), but that was true of Souter, too, as well as others on the court.
2. Some conservatives keep publicizing a YouTube clip where she confides to a panel-discussion audience that appeals courts are "where policy is made." Sorry, but that's a standard observation among legal commentators these daysby no means limited to liberalsand, by my subjective measure, she actually comes off pretty well on that tape.
3. Grumbling about "affirmative action picks" will likewise fall flat, if only because everyone knows most Republicans would have stampeded to back a Hispanic female nominee with similar credentials had George W. Bush picked one. Likely to develop more traction is criticism of Sotomayor's actual approach toward affirmative action issues, starting with the now-famous line from her speech to a diversity conference in 2001"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life"and continuing through the pending New Haven case where some fellow judges thought she gave short shrift to firefighters' complaints of reverse discrimination.
Prediction: She'll explain away the 2001 line as not reflecting her current thinking, and won't have to discuss the firefighters case since it might land back in her court on remand.
4. Republicans will argue that when it comes to Supreme Court review of her opinions, Sotomayor has more reversals than a good thriller plot: The full court has overturned her rulings in (among others) major environmental, civil-rights and copyright cases. Up to a point, Obama can present this as feature, not bug: He wants someone at odds with today's high court trends, aside from which her overturned opinions often garnered two, three or four votes from the liberals on the current court, making it hard to portray them as beyond the pale.
Two 2006 cases present more problems for Sotomayor advocates, but they're on subject matter that could come off to the public as dry and remote: Merrill Lynch v. Dabit, where she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law (reversed 8-0 by the high court), and Knight v. Commissioner, on the deductibility of certain trust fees, in which the court upheld her result but unanimously rejected her approach as one that (per Roberts) "flies in the face of the statutory language."
Issues of business law don't come across as Sotomayor's great passion one way or the other, so it's hard to know what all this portends for the high court's direction on business issues should she be confirmed. As Home Depot's Bernard Marcus and others have pointed out, for all of David Souter's predictable role on the court's liberal side in most high-profile cases, he in fact steered to middle-of-the-road, hard-to-characterize views on many issues of litigation, liability and procedure, either as a swing vote or as the author of opinions. (Two key issues to watch: what sort of constitutional restraints, if any, there are on punitive damages, and how much scrutiny judges should give to initial pleadings to determine whether a federal lawsuit ought to go forward.)
Some of her backers say they expect that Sotomayor will emerge as a liberal in the less than fiery, relatively "legalistic" Ginsburg/Breyer mold. Even assuming that happens, some outcomes will soon change in a direction most businesses will find adverse. And in coming weeks, both friends and foes will be going over her published opinionssome with hope, others with dreadfor clues to whether she might form the nucleus of some future new and more seriously left-wing faction on the court.