Senate's Supreme Soap Opera

As the Sotomayor Show drones on, Democrats and Republicans are pushing dueling plot lines--an American dream of minority upward mobility vs. the Conservative nightmare of activist judges tilting the scales in favor of it (see firemen, New Haven).

Behind these postures is the reality that Supreme Court confirmations are now TV soap operas in which politicians emote to their core constituencies on the way to what only Lindsey Graham openly acknowledges as Judge Sotomayor's predetermined final scene: "Unless you have a meltdown, you’re going to get confirmed.”

Without the high drama of Borking or Clarence Thomas High-Tech Lynching, this week's action will feature nitpicking over Wise Latina Woman and other off-the-bench remarks by the nominee, leaving the dutiful viewer to muse over the middle-aged woman at the center of it all.

Behind that figure of "a young minority woman from humble circumstances who overcomes obstacles, fights discrimination and achieves the American dream," David Brooks sees "a person who worked hard and contributes profoundly to society, but who also sacrificed things along the way"--in short, a personal life.

Brooks' concern for Sotomayor is touching, but it invites comparison with attitudes toward the Justice she is succeeding, David Souter, a quirky, reclusive New England bachelor who preferred mountain-climbing to Washington socializing.

No one clucked over Souter's "sacrifices," and after this week's ordeal is over, Sotomayor will take her seat as the third woman ever on the Supreme Court and, by the time her tenure ends, such sexist distinctions will be long gone.

Sotomayor's Singleness

Since the President made so much of biography in introducing his Supreme Court nominee, every facet of Sonia Sotomayor's life seems up for discussion, including her marital history.

Divorced in her twenties, the new Justice would be taking over what is being called "the single seat" on the Court from David Souter, a bachelor. At her 1994 appellate confirmation hearing, Sotomayor introduced a fiancé who subsequently faded from the picture.

If matrimonial status has any bearing on Supreme Court deliberations, the new nominee is at the far end of the spectrum from William O. Douglas, who served longer than any other Justice (almost 37 years) and was married four times, going through three divorces while on the Court.

Yet Sotomayor shares with Douglas a background of extreme poverty after the early death of a father, in his case working as a waiter, janitor and cherry picker on the West Coast, where he saw "cruelty and hardness" by police against migrant laborers and "Chicanos."

Those experiences informed Douglas' work on the Court, which eventually resulted in an unsuccessful impeachment attempt in 1970, led by Rep. (later President) Gerald R. Ford, who attacked his "liberal opinions" and lifestyle.

Sotomayor may or may not turn out to be a philosophical soulmate of Douglas, but there is nothing in her history to suggest that she will emulate his flamboyance.

In the early 1950s, as a junior editor of a men's magazine, Argosy, I edited an article by Douglas, an avid outdoorsman who always needed extra money to support his ex-wives. It was about a cowboy obsessed with a wild black stallion, whose pursuit of the animal leads to grief at its death in captivity.

It's hard to imagine careful Sonia Sotomayor celebrating that kind of wildness.

Obama v. Roberts, Round One

As the President begins one-on-one interviews with replacements for David Souter, his eventual choice will be only the start of a four- or eight-year struggle for the soul of the Supreme Court in the 21st century.

The lines are clearly drawn. In voting against the confirmation of John Roberts, then-Sen. Barack Obama acknowledged the Chief Justice's intellect and scholarship but questioned "what is in the judge’s heart. It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

In his tenure, Roberts has justified Obama's doubts. As Jeffrey Toobin observes in the New Yorker, "In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff...Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

President Obama's choice now will not alter the philosophical makeup of the Court but may go some distance in shifting its tone. If the rumored list of finalists is right, the new Justice is likely to share Souter's opinions but express them with more passion.

Judging from the President's track record so far, his pick will be confirmable but not bland. Gender and ethnicity will be in play but not determinative.

The actuarial tables suggest that Obama eventually will have his chance to alter the balance of the Court away from the Bush mindset in his own direction. Next week's decision will be a preliminary skirmish with the main battles yet to come.

Souter's Tears

In his 2007 book about the Supreme Court, "The Nine," Jeffery Toobin wrote about David Souter's reaction to the decision that gave George W. Bush the presidency:

"His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

"Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept."

Souter's resignation now as a healthy 69-year-old man, after Obama's first hundred days, gives weight to Toobin's assertion, which raised doubts at the time, and underscores President Obama's declaration yesterday:

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives.”

Souter couldn’t have said it better, but he actually did, soon after his swearing-in in 1990:

"The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."

The confirmation of a successor will almost certainly be an occasion for venting by Republicans in disarray and liberal Obama supporters unhappy over his failure to be ideologically correct on every issue, but Souter's tears, real or not, may be the best metaphor for what's at stake.

A Conservative's Tears

In 1990, when Supreme Court Justice David Souter was sworn in, he said, “Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."

Ten years later, we now find out, his mind, heart and being were troubled by the 5-4 decision to stop the Florida vote recount and hand the presidency to George W. Bush, even though he could not possibly have imagined how many human lives would be changed by that decision.

In his new book, “The Nine,” Jeffrey Toobin writes that while the other justices put the case behind them, “David Souter alone was shattered,” at times weeping when he thought of the case.

“For many months, it was not at all clear whether he would remain as a justice...At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same.”

The irony of Souter’s dissent in that case and distress afterward lies in the fact that he was appointed to the Court by George W. Bush’s father in the belief that he was a true conservative. He was and is, but not in the warped sense that the Bushes have given the word in the years since.