The right choice, the right time

Judging from her inspiring personal story, her top-flight academic credentials, and what former colleagues and law clerks describe as both her intellect and - yes - her empathy for the downtrodden, U.S. Appeals Court Judge Sonia Sotomayor deserves to be on the Supreme Court.

And President Obama deserves enormous credit for choosing her and thus making history by nominating the first Latina to sit on the high court. He's done himself and the Democratic Party a lot of good with Latino voters - probably for a generation or more - by breaking what many considered an impenetrable barrier. While Sotomayor still has to be confirmed, the fact that she was nominated at all is already historic.

Frankly, I didn't think Obama would nominate the New York judge, despite her impressive background. A lot of people I've spoken to in recent weeks - journalists, lawyers, law professors, former government officials, etc. - didn't think Sotomayor would be the pick either. They said she would be a strong choice, but noted that the Eastern media seemed to have other favorites in mind, specifically Solicitor General Elena Kagan and U.S. Appeals Court Judge Diane Wood. In fact, it's hard to find any story in recent weeks about either of these two prospects that wasn't positive.

Not so for Sotomayor. The people I talked to bemoaned the criticism and negative stories that have come out about her in recent weeks - most of them unfair and inaccurate, according to her defenders. The caricature drawn in the media is that she is too liberal, too caustic with lawyers, too hot-tempered, and not strong enough intellectually. Supposedly, she also doesn't play well with others. She's even on record - on videotape, in fact - talking at a law conference at Duke University about how the appeals court is where policy is made, something that Sotomayor acknowledged was controversial at the moment she said it. She also clarified that she was not promoting that courts should make law.

Even her gender and ethnicity could be seen as a liability, according to some white male commentators who urged Obama not to give in to "identity politics" by choosing her. In the same vein, there is the controversial affirmative action case in New Haven, Conn., in which she joined two colleagues in upholding a decision by the city to throw out the results of a firefighters' test because it conflicted with hiring goals since none of the top scorers were black. Many conservatives consider the city's action to be "reverse discrimination."

That was the opinion of National Journal's Stuart Taylor, who criticized the appeals court's decision. Taylor also twisted what Sotomayor said in a 2001 lecture at the University of California (Berkeley) School of Law about how "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion (as a judge) than a white male who hasn't lived that life." The way Taylor heard that, Sotomayor was suggesting that "Latina women like her make better judges than white males."

Give me a break. How thin-skinned can you get? Sotomayor's remarks were about much more than that. They were about empathy, something that President Obama had suggested was on his shortlist of qualities he was looking for in a justice. While running for president, he talked about how he'd select judges based on whether they had "the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old." More recently, Obama talked about how he wanted a nominee who has "a little bit of a common touch" as well as "a sense of what ordinary people are going through." He found one.

Some pundits and reporters are calling Sotomayor a political choice, and a safe one. Political maybe. One of the people in Sotomayor's corner was White House Chief of Staff Rahm Emanuel, who clearly understood the power of breaking the Hispanic barrier and how it could pay dividends to Democrats for years to come. But it wasn't a safe choice. Not with the caricature that has been drawn of this accomplished jurist.

Luckily for Hispanics, and for the country, President Obama - who was depicted during the campaign as a black militant and worse - knows something about caricatures. And why they cannot be allowed to stand in the way of doing the right thing, making the right choice, and, whenever possible, making history at precisely the right moment.

© 2009, The San Diego Union-Tribune