Commentary Magazine


He Got the Judge He Wanted

Peter Baker notes the irony: the president who ran as the post-racial candidate has selected a Supreme Court nominee who is anything but post-racial. He writes:

But four months later, identity politics is back with a vengeance. A president who these days refers to his background obliquely when he does at all chose a Supreme Court candidate who openly embraces hers. Critics took issue with her past statements and called her a “reverse racist.” And the capital once again has polarized along familiar lines.


It doesn’t take  long to figure out that, as Abigail Thernstrom (conservative scholar and member of the U.S. Commission on Civil Rights) observes, “He didn’t pick a post-racial candidate. . . She’s a quintessential spokesman for racial spoils.”

Baker reports that the administration is shocked, just shocked, to find there’s identity politics going on. Could they really dispute that “they fostered identity politics through a selection process focused on adding diversity to the court”? That suggests they either missed the impact and distastefulness of Sotomayor’s “wise Latina” speech (and her opinion in Ricci) or that they are determined to play the identity politics game, while denying they would do such a thing.

As Thernstrom points out, the pick tells us much about the president. He could have chosen a “diversity” pick who didn’t identify with the race-conscious civil rights lobby. And he could have picked someone who was renowned for legal scholarship. Instead, he made a conscious choice to pick Sotomayor, who is openly contemptuous of the idea of judicial impartiality and who revels in identity politics. We must conclude that despite Obama’s campaign rhetoric this nominee is compatible with his views on judging as an exercise in empathy and with his broader views on race. Otherwise he could have chosen someone else, right?