At the Huffington Post Stanley I. Kutler, professor emeritus at the University of Wisconsin, discusses President Obama’s selection of Judge Sonia Sotomayor for the Supreme Court. Professor Kutler, who was the subject of some TNN posts last year concerning challenges to transcriptions of White House recordings that he presented in his book Abuse Of Power, begins with the statement, referring to Judge Sotomayor’s rise from poverty to the heights of accomplishment, that “[l]ife narratives are compelling, and Sotomayor clearly has one, perhaps side-by-side with the President’s — and Clarence Thomas.”
To mention Justice Thomas in this context is bound to make many liberals wince. Like Judge Sotomayor, the justice was educated in Catholic schools – and he subsequently converted to the Catholic faith, whereas Judge Sotomayor was born into it. Judge Sotomayor’s views, as expressed off the bench at various academic forums, sometimes suggest some kinship to those of the late Dorothy Day, who combined social radicalism with a committed pro-life agenda, and who unhesitatingly called abortion “genocide.”

In a previous TNN post I noted that in one case concerning a challenge to the Bush Administration’s refusing to fund international organizations that advocated abortion, Judge Sotomayor decided for the administration. Her opinion in that case did not conform to the idea of abortion-as-universal-human-right supported by much of the pro-choice contingent. It makes one wonder whether she might turn out to be the Harriet Miers of the Obama era – too conservative on one or two particular issues for some in the President’s party, far too liberal in other issues for the opposition.

Another concern of Kutler’s in this article, not unexpectedly, is to wax nostalgic for the days before 1968 (and the ascension of the dreaded RN to the White House), when “Supreme Court nominations only rarely resulted in contentious confirmation battles.” He remarks that among Franklin D. Roosevelt’s nominees to the Court, only Hugo Black stirred much opposition, as a result of his brief membership in the Ku Klux Klan in the 1920s. Well, by the time FDR had the chance to make his first nomination to the Court, the Democrats were solidly in control of the Senate, and that remained the case until the end of his Presidency. If he had had to confront a predominantly Republican Senate over his Court choices, as RN was obliged to confront one that was Democratic, Roosevelt might well have had one or two or more of his choices rejected. Before FDR, Herbert Hoover had had one of his Court selections narrowly rejected by a Republican-controlled Senate (John J. Parker). And then again, Kutler seems to forget the titanic struggle between the White House and a Democratic-controlled Congress over FDR’s “court-packing” plan in 1937.

Between FDR and Nixon, only Harry Truman, from 1947 until 1949, and Dwight D. Eisenhower were faced with Congresses in which the opposition had a majority. Truman was not called upon to fill a Court vacancy during that time; Eisenhower’s five choices all enjoyed considerable bipartisan support. At the end of his Presidency, Lyndon Johnson met with opposition to his choice of Abe Fortas to replace Earl Warren as Chief Justice, partly from Southerners in his own party, and the nomination was withdrawn.

Since RN, the selections made by Presidents to the Court have almost always met with trouble if the Senate was controlled by the opposing party. (Gerald Ford’s selection of John Paul Stevens, and George Bush’s choice of David Souter, were the exceptions.) When the Republicans were the Senate majority from 1981 until 1986, Ronald Reagan’s selections of Justices O’Connor and Scalia, and his elevation of Justice Rehnquist to Chief Justice, went through the Senate comfortably. When the Democrats were back in control of the Senate, that chamber rejected Robert Bork. So, Kutler’s notion to the contrary, strife between the White House and the Senate over Court choices didn’t start with Nixon, and if it hasn’t ended since his time, that’s not his doing.

Kutler also muses on the subject of judicial activism vs. strict construction, that duality upon which many a debate about the Court has centered since the 1960s. He somewhat slyly remarks that whereas Nixon’s statements after the Engel v. Vitale decision of 1962, which ruled against prayer in public schools, criticized Justice Black’s majority opinion as leaning too far toward a strict interpretation of the Establishment Clause, as President he was a strong supporter of a literal interpretation of the Constitution. Kutler makes it clear that he sees Judge Sotomayor as leaning toward the activist side, and that he thinks this is all for the best. But are liberals really ready for the judge to be an activist where it might be inconvenient for them?