President Obama’s political problem, to the extent one can exist on a pick almost surely to succeed, is now as much his background as Sonia Sotomayor’s. Obama voted against President George W. Bush’s two Supreme Court nominees, John Roberts and Sam Alito. Obama also supported the Democratic filibuster of Alito's nomination.

It remains to be seen how vehemently conservatives will challenge Sotomayor. But it's clear Obama chose a candidate that will arouse conservatives in opposition rather than one who will simply irk them, and this White House knew it.

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That conservatives’ philosophical critique can be broken down into one sound bite is of little benefit to a president that has already failed to make good on his promise to lessen partisan polarization.

In a quote you will see looped until she is confirmed, Sotomayor sat on a Duke University panel in February 2005 and said that the U.S. Court of Appeals “is where policy is made.”

“All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is, Court of Appeals is where policy is made," she said in a professorial tone. Aware of the gravity of the comment, she offered a casual caveat. "And I know, and I know, that this is on tape, and I should never say that. Because we don't,” putting her hands up to signify air quotes, "make law, I know." As the audience laughed, she continued, "Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation, it's application."

This comment will likely evoke serious scrutiny from conservatives and perhaps their allies in the Senate, over what Sotomayor believes the judicial branch’s role should be in making policy and what the parameters are for that power.

Democrats’ difficulty ahead is that Obama contested Alito’s nomination for reasons beyond his expertise in the law.

“I have no doubt that Judge Alito has the training and qualifications necessary to serve as a Supreme Court Justice. He's a smart guy, there's no indication that he is not a man of good character," Obama said in January 2006. “But, when you look at his record, what is clear is that when it comes to his understanding of the Constitution, he consistently sides on behalf of the powerful against the powerless.”

So now conservatives will deconstruct Sotomayor. Like Obama with Alito, conservatives have broad philosophical reasons to take issue with Sotomayor. They will see if they too can frame her in populist oppositional tone, but likely in terms of culture instead of class. Those remain the fault lines of party politics.

How dearly though do conservatives want this fight? There is fundraising potential. There is the chance to galvanize a weary base. There is the opportunity to paint Obama as a liberal on domestic policy. But there is also the reality that almost any fight against Sotomayor will likely fail. There is the most visible GOP problem of challenging potentially the first Hispanic justice at the very moment Republicans are attempting to win back Hispanics. And then there is what Republicans have said in the past. Will any Republican who criticized Democratic obstructionism of Republican Supreme Court nominations now attempt to obstruct?

But we do know, because of Obama’s own votes and words, that it will be difficult for this White House to undermine the credence of a conservative challenge. For this reason, the White House may seek less to challenge the merit of conservative pushback than attempt to marginalize it.

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