Playing the SCOTUS Long Game

President Obama meets with Judge Sonia Sotomayor, his nominee for the Supreme Court, in the Oval Office on May 21.

Barring an extraordinary revelation, Judge Sonia Sotomayor will be confirmed to the Supreme Court, becoming the first Hispanic and only the third woman on the bench. This much we know. What we don’t yet know is what kind of Justice she will be. Nobody does; the list of justices who have deviated from ideological expectations is long. What’s more knowable is the political implications of this pick, and the strategies taken by both parties in reaction to it.

Republican activists–as opposed to party leaders and elected officials–are clearly spoiling for a fight. Despite the long odds against denying her appointment, right-wing groups need the fund-raising and list-building benefits of a drawn-out battle. They don’t need this for now; they need this for later Court fights, when the outcome will be harder to predict.

Even before she was picked, Sotomayor inspired special ire on the right, mostly because she once said that courts make policy. For strict constructionists, such a statement represents a serious outrage. But Sotomayor was simply acknowleding reality: As conservative blogger AllahPundit has pointed out, “Of course courts make policy.” Indeed, today’s Republican vision of jurisprudence has explicit policy aims, including overturning Roe v. Wade and rolling back some of the Voting Rights Act.

If anything, the President wants Republicans to engage him in a fight over Sotomayor. He wants his opponents to cast aspersions on an Hispanic woman whose life story is classic Americana. He wants them to brand her a “left-wing radical,” and he wants them to defend strict constructionism. The first charge will be rebutted by appearances: Sotomayor nearly weeped while accepting the president’s nomination, and offered profuse thanks to her mother. That’s not exactly the behavior of a left-wing radical. The strict constructionists’ complaints will go ignored by most Americans, who have no time for theoretical arguments about the law. And if opposition to Sotomayor translates into alienating Hispanic voters–a group that Republicans desperately need but are losing fast–all the better for Obama.

Republican Senators will have reach some kind of compromise with the legal activists who have been energized by this selection. Those activists, after all, make up a good part of their base. Look for the GOP to adopt a strategy similar to the Democrats during the Roberts and Alito confirmation hearings. There will be lengthy discussion of Sotomayor’s more controversial statements–CNN has already compiled a list of such statements, here–and those Republican Senators with serious presidential aspirations of their own will vote against confirmation. But she’ll be confirmed.

The real fight will occur if a true conservative justice steps down during the Obama presidency. It’s not entirely outside the realm of possibility; Scalia will be 76 in 2012. The battle over Sotomayor–the fire and brimstone rhetoric sure to emanate from both sides, the enormous fund-raising efforts and list-building exercises in the offing–will be little more than a rehearsal for that possibility.