Sotomayor’s Theory of Change

This, from Gerard Magliocca – a conservative law professor at Indiana and a former intern of Sotomayor’s – is the most convincing case I’ve heard for her nomination yet:

On another occasion, I drafted some research for her that was not well written. When she discussed the memo with me, she started by saying, “You are too smart for me,” and proceeded to ask me a series of questions that I had not addressed. I realized later that this was her polite way of saying: “This isn’t good. Do it over.” She could have said just that, but evidently decided that positive reinforcement was the way to go. This is exactly the kind of skill that a Supreme Court justice needs to persuade her colleagues, who tend to have powerful personalities and do not take criticism well.

Up to this point, I had been thinking that there were only two ways for Souter’s replacement to be more than a holding pattern. One would be to pick someone along the lines of Brennan or Douglas, who would create bold and sweeping precedents as opposed to the more limited opinions of someone like Breyer or Ginsberg. Pam Karlan, Kathleen Sullivan, and Elena Kagan would be the obvious choices here. Alternately, one could pick an Earl Warren-style politico, who knows how to twist arms and count votes. Janet Napolitano, Jennifer Granholm, and Deval Patrick fall into this category.

But Magliocca presents a third option: a justice who wins votes through respectful, almost passive persuasion. In a way, this is the judicial application of Obama’s entry into the “theory of change” primary. The idea in both cases is that merely by engaging one’s ideological opponents in good faith, one has a better shot of co-opting them. I have my doubts about how this would work on the Court. The tactic works for Obama because he can use public reaction as a bludgeon to punish conservatives who are clearly not reciprocating his good faith. Supreme Court justices, by contrast, are accountable only to their own consciences, leaving their colleagues nothing to play against them. That said, if at least once Sotomayor walks into Anthony Kennedy’s chambers, begins with, “You are too smart for me,” and walks out having flipped a 5-4 decision, then Obama’s selection of her stops being just a very good choice and starts being a masterstroke.

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