Matt Zeitlin

Despite the gossipy and silly whispering campaign launched against her by centrist and conservative commentators, the pick was, in many ways, inevitable. Sotomayor had just about everything Obama was looking for. Compelling personal story, accomplishments beyond being a federal appeals judge, female, Hispanic and not a bomb thrower.

She’ll be approved, and so the question is now how much of a fuss the Senate GOP and their allies want to make over the pick. There is an entire infrastructure, that’s very well developed on the conservative side, whose sole purpose is either to champion conservative Court picks or tear down liberal ones. And they, of course, are already spewing out their concocted and soon-to-be-everywhere lines about Sotomayor, focusing on her supposed poor temperament, lack of intelligence, he “activism” and her decision in the Ricci affirmative action case.

All of these lines of cricticism are notably distored. Sure, Sotomayor isn’t the mega-intellectual superstar that Pam Karlan or Kathleen Sullivan is, but neither was Alito, O’Connor, Rehnquist, Thomas or even Roberts. Her decision, along with two other Second Court judges, to not overturn a lower court’s holding in the Ricci case, while oddly constructed (the opinion made no effort to grapple with any constitutional issues), wasn’t particularly controversial. In fact, at least four justices are almost sure to agree that the throwing out of the test results for promoting New Haven firefighters was constitutional. As far as activism goes, well, any judge appointed by a Democrat will be called an activist. To expect Republican politicians and their allies to display any intellectual honesty or self awareness (it’s generally conservative justices who strike down the decisions of voters and/or government officials) is a total lost cause. Conservatives decided a long time ago that all of their least favorite judges were activists and all their favorites weren’t. Sotomayor’s cause isn’t going to be helped on this point by her somewhat bad sounding, but totally innocuous  statement that appeals courts are where policy is made, but they were going to go after her on this point anyway.

So, expect Sotomayor to be on the court at the start of the new term, and for nothing that happens in the confirmation fight to have any lasting impact.