Shields and Brooks on Sotomayor's Nomination

By The NewsHour, The NewsHour - May 29, 2009

JUDY WOODRUFF: And to the analysis of Shields and Brooks -- syndicated columnist Mark Shields and New York Times columnist David Brooks.

So, gentlemen, we have heard the professors discussing.

David, is this -- with -- when you look at Judge Sotomayor, are we talking about somebody who is careful and rooted in the facts, or somebody who is going to predictably lean to the left?

DAVID BROOKS: You could be both.

DAVID BROOKS: And I think that's quite possible.

I think one of the things we have -- first of all, it is overwhelmingly likely she will be confirmed, from what we know so far. Just the temperature even of the Republican senators, they are not on the warpath. They are sort of cautious and waiting.

I think the crucial issue -- there are a whole list of concerns people have raised, temperament and other things. I think the -- the most important one involves this identity politics. She gave that speech about being a wise Latina woman.

And if you are going to give speeches like that, it has to be extremely clear on the record that you will sometimes rule against the groups you are celebrating outside the courtroom.

In the Ricci case, the New Haven firefighters case, seems to give impulse to those who say, no, she is favoring certain groups. And this is sort of a heartrending case and a politically explosive case. You have got this dyslexic guy. He quits a second job. He studies eight hours a day. He passes the firefighters test, and then the results are expunged.

So, that is the one explosive thing hanging out there. But if, as all the legal experts seem to tell us, she is very fact-based, very modest, then in fact her outside speeches will not be reflected in those -- in the actual judgments. In that case, politically, she will be fine.

JUDY WOODRUFF: That was a one-paragraph decision, as -- as we just heard.

Mark, how do you see her? Where does -- where does she fit?

MARK SHIELDS: Well, I had -- I had a -- I had a good Republican friend say to me, now, let me get this straight. We have a woman whose mother came to this country, joined the Army, was widowed, and worked seven days a week to live in public housing to send her daughter to parochial school, where she was valedictorian of her class. And she then went on to Princeton. And they say, well, that was affirmative action.

Well, she was summa cum laude at Princeton. I mean, as Alan Simpson used to say about white males, you know, they graduated, not summa cum laude, but thank the laude.

MARK SHIELDS: I mean, it -- I mean, it was just an amazing achievement.

She then goes to Yale Law School, and is she on the law review. I mean, this is not an affirmative action case, in the way that they are commonly understood by many on the right. My old colleague and friend Pat Buchanan called her an affirmative action -- it is not that.

I mean, obviously, she meets the ethnic requirement. This is the fastest-growing electorate in the country. Three times, it's increased in size over the past 20 years, Latinos. They have never had anybody. The four key states in the 2008 election were Colorado, New Mexico, Arizona, and -- and Nevada, all big states.

I mean, the thing, politically, is -- and my Republican friend said to me, he said: This is a disaster for us, if we try and stop this -- this nominee, politically.

And I -- I think there is great truth to that. I think David is right, that the one case they have is the -- is the New Haven firefighters case. And it's freighted with emotion. But, as you point out, it was a one--paragraph decision. There's four judges who heard the case, the district court and the three on the court of appeals with her, and they all agreed.

But, David, we just heard the professor, professor Cassell, say she is not somebody with great intellectual firepower.

DAVID BROOKS: Yes. Well, I -- I don't think it's affirmative action. And Mark talked about her record. I think it's pretty clear she is certainly smart enough to be on the court, certainly has the record to be on the court. She has got more experience as a judge than most nominees, I think all but one, actually having trial experience.

And so I don't think that's an issue.

What is talked about -- and on both sides -- they just have different views of it -- is the nature of her decisions. And when you talk to lawyers and legal experts who -- who have read a lot of these decisions, they do tend to agree that they are very context-based, very fact-based.

They are not broad, abstract, theoretical decisions. Now, from the White House the word that you hear is modest, modest, modest. She is a minimalist. She is cautious. Don't be scared. She is very careful.

And that actually is very consistent with what you hear on the other side from some of her opponents, which we just heard from professor Cassell, which is, she is fine, but she's not a great theoretician. She is not an anti-Scalia.

And I have heard from the Republican groups or conservative groups, that is fine. If we are going to have an Obama nominee, we wanted someone who is modest and careful, not somebody who is more theoretically aggressive.

Does that mean that the conservatives have drawn blood here? What -- what -- what does that say?

MARK SHIELDS: Judy, I mean, it was -- it was wrong. I mean, let's be very blunt here.

JUDY WOODRUFF: You mean what she said.

MARK SHIELDS: What she said was wrong.

I mean, that is not the standard that Americans live by, that somebody because -- solely because of ethnic identity or gender, is going to be a wiser jurist. Now, say, be a -- I would bring different sensibilities, sensitivities to the bench, that is one thing.

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