At her confirmation hearing this past July, now-Justice Sonia Sotomayor exasperated and disgusted many of her supporters on the Left by attempting to disguise herself as a judicial conservative. In a recent event in which we both took part, SCOTUSblog’s Tom Goldstein stated emphatically that he was reliably informed that the White House, at the highest levels, determined in advance that it wanted Sotomayor to testify precisely as she did. I fully credit Goldstein’s account.
If (as appears very, very likely) President Obama will have another Supreme Court vacancy to fill next summer, the Left will be pushing for the next nominee to be an ardent advocate of the progressive vision of constitutional decisionmaking. But even apart from the fact that Sotomayor’s testimony already set a benchmark that raises the political costs of such a nomination, yesterday’s election results would seem to make it much less likely that the Left will get its wish. If the White House, near the peak of Obama’s popularity, chose to try to play things safe by casting Sotomayor as a judicial conservative, how probable is it that the White House would take a more aggressive approach in advance of the 2010 midterm elections, which now look markedly more threatening to Democrats than they previously did?