Obviously, President Barack Obama is intent on giving us a lot of empathy and not much jurisprudence.
Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. Instead, the tag line for this appointment says it all. The president wants to choose “a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.”
Obviously, none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.
We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
We’ve barely finished four months of the Obama administration. The ride is likely to get a lot wilder very soon.