In a YouTube video filmed during an appearance at Duke University Law School, Sotomayor said, "All of the legal defense funds out there, they're looking for people with court of appeals experience" because "the court of appeals is where policy is made." The accuracy of her statement aside, it can be construed as code words for jurisprudence conservatives abhor: judicial activism.
Her second and more inflammatory remarks arose during a 2001 speech at the University of California-Berkeley. Sotomayor's racially-tinged remarks included the following: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." This confronts the standard assumption that justice is colorblind, but President Obama suggested she misspoke, and his press secretary said this quote was taken out of context. Conservative firebrands Rush Limbaugh and Newt Gingrich respectively called her a "racist" and accused her of "new racism."
The latter remarks are emboldened by Sotomayor's role in a case presently before the Supreme Court, Ricci v. DeStefano. She was part of a 3-0 decision by the Second District Court of Appeals that denied a New Haven fireman's claim that he was subjected to reverse discrimination. Given the current complexion of the Court, one would expect the 5-4 conservative majority to reverse.
According to Fox News, "Sotomayor has a record of being rebuffed by the high court. Of the six decisions she was a part of that came before the high court, five were reversed. In the sixth, the court disagreed with Sotomayor's reasoning."
This fiery rhetoric and track record considered, Sotomayor is all but a shoe in to become the first Latina on the Supreme Court (there is some controversy over whether she is the first Hispanic). The popular president's party, the Democrats, control 57 of the seats in the Senate (charged with "advice and consent" in the confirmation process), and two independents (Sanders and Lieberman) caucus with them. While this is one vote shy of a filibuster-proof majority, Republicans appear more likely to bloody Sotomayor and vote in opposition than to stymie the process altogether.
Moreover, the moderate-to-liberal Sotomayor would replace a justice with a similar ideological disposition in Souter, meaning the fragile conservative majority will remain. Expect more bruising battles should swing vote Justice Kennedy or conservative stallion Justice Scalia step down during the remaining years of the Obama presidency.
Additional analysis of the Sotomayor nomination will follow here in the ensuing weeks and months, but an under-the-radar detail has received scant press notice to date. She is Roman Catholic by denomination, and her confirmation would bolster the Court's Catholic majority to six. Justice Stevens would stand as the lone Protestant on a bench they long dominated, while Justices Breyer and Ginsburg are Jewish (also rare, Justice Brandeis aside).
Religious denomination need not dictate decisions, but it is interesting to note that the five current Catholics comprise the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito). Bellwether issues like abortion, gay marriage and the death penalty will test this coalition, especially by adding the divergent Sotomayor to the mix.