Read more from Slate’s coverage of Sonia Sotomayor.
President Obama’s search for a nominee to the Supreme Court started with 40 names. Nine of those names were contacted, and then Obama himself narrowed the list down to four women: Homeland Security Secretary Janet Napolitano, U.S. Circuit Court Judge Diane Wood, Solicitor General Elena Kagan, and, his ultimate choice, U.S. Circuit Court Judge Sonia Sotomayor. Last week, Obama met with all four, and as of Sunday night, aides say, he was still mulling his decision. He made the final call at 8 p.m. Monday.
So what does this process tell us about the way Obama makes decisions? The first lesson is that we know only as much as the White House wants us to know. But with that caveat, there are a few facts to be gleaned from the administration’s version of events.
First, the president can multitask. He met with Sotomayor for an hour on the day he was doing cross-town battle with Dick Cheney. It also shows that he is deeply involved. He studied the work of all three finalists. He read many of Sotomayor’s opinions as well as material collected by his staff—interviews with former clerks and lawyers who had argued before her. We are also told that the president followed the model of self-examination he uses in all of his big decisions to avoid groupthink. He rigorously “tested his assumptions” on Sotomayor, says an aide, including asking the staff to “make the case against her.”
It is at this point, however, that the trail grows cold. It’s a common problem with reporting Great Moments in Presidential Decision-Making: There’s only so much you can find out, at least in the days after the decisions have been made. In this instance, there’s little doubt the president was engaged, and he probably asked lots of interesting questions. But we’re not allowed to see too much.
So we are left with back-and-forths like this: What worried Obama about Sotomayor? Nothing, say aides. What about during that session where staffers made “the case against her”? It was a short exercise, says an aide, and “there was no heartburn moment.” (And even if there were, the White House is not about to reveal it and give her opponents ammunition.) What “assumptions” did Obama test in his private meeting with Sotomayor? It was, after all, the first time he’d met with her. The meeting was private, aides say, so they don’t know the details. But they can say that the president did not question her on her weak spots. It was a general conversation about the law.
The president may know more about constitutional law than most of his aides, but his staff clearly did its homework. In support of the pick, they were quick with rebuttals to the key questions that have been raised about Sotomayor. Take the New Haven firefighter case (Ricci v. DeStefano), which opponents offer as the primary evidence in the argument that Sotomayor is a judicial activist driven by identity politics. It actually proves the opposite, aides say. They say she was showing “judicial restraint” in joining her colleagues in a unanimous decision to not rehear the case. “She did what appeals court judges do, which is apply precedent,” a senior administration official said of the case that is now before the Supreme Court. “That shows the kind of judicial restraint she brought to her job as a court of appeals judge. In the confirmation process, people are going to have to choose between attacking her for not applying the law or applying the law. People may not like the result, but she applied the law.”
To bolster the case that she is not a “judicial activist,” administration aides point out that in the cases where she sat on a three-judge panel with at least one judge appointed by a Republican president, she agreed with them 95 percent of the time. To the charge that Sotomayor has been regularly overturned by the Supreme Court, Obama aides argue for a broader context. She has written opinions on at least eight cases that the Supreme Court has later reviewed on appeal, and six of them were either overturned or sent back to lower courts for further consideration. But, aides argue, that ignores the 370 cases for which she wrote opinions and which were never taken up by the Supreme Court. Only about 1 percent of the opinions she has written, they say, have actually been overturned.
What about her comments, made at an academic conference and captured on YouTube, that appellate court judges “make law”? They were taken out of context, says an aide: “They took a small bite out of a long lecture in which she talked at length about judicial restraint, and she herself acknowledged that it was a poor choice of words.”
Obama’s aides also did a collegiality vetting, arming themselves against the critique that Sotomayor is too brusque for the post. Collegiality is one of the qualities Obama was said to be looking for before his pick was announced. Administration staffers interviewed all of her colleagues in the 2nd Circuit and report that they said “glowing things about her.” They quote Judge Richard C. Wesley, a George W. Bush appointee to the 2nd Circuit: “Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her.”
Whatever the twists and turns of President Obama’s decision, they must give way to a new story line: The decision has been made, and now it must be sold as a dead certainty. At the end of the process, said the official, “there was no question where the arrow pointed.” The job now is to convince the Senate that the president’s rigorous process means that the Senate should confirm Sotomayor quickly.