At the Sotomayor announcement ceremony today, President Obama emphasized the fact that his new Supreme Court nominee was first chosen for the federal bench by a Republican, the first President Bush. “It’s a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the U.S. District Court by a Republican president, George H.W. Bush, and promoted to the Federal Court of Appeals by a Democrat, Bill Clinton,” the president said. The message was clear: Sotomayor is a judicial moderate with great experience and appeal to both sides of the ideological spectrum.
Which leads to a question: Just why did the first President Bush nominate Sotomayor to the U.S. District Court for the Southern District of New York? The answer, after discussing the issue with veterans of the first Bush administration, is pure politics, with a generous helping of horse-trading thrown in.
The first thing you have to understand is how judges are nominated to the federal district courts, which are below the circuit courts of appeal and the Supreme Court. The higher courts are often the stage for ideologically-based confirmation fights. The lower district courts, are, in the words of one former Bush official, “darn near patronage jobs.” Senators, even those in the opposing party from the White House, wield great power over who is nominated to the district court seats in their states. And in 1991, when Sotomayor was nominated, the Senate was controlled by Democrats, and the two senators from New York were Democrat Daniel Patrick Moynihan and Republican Alphonse D’Amato.
By a number of accounts, Moynihan and D’Amato had a longstanding arrangement. “It was a special deal whereby D’Amato agreed to defer to the pick of Moynihan for one out of every four district court seats,” another former Bush official told me. “That was a deal that preceded President Bush I, so basically Moynihan was picking one of four district court nominees.” That deal stood even though Republicans controlled the White House and thus (theoretically) the right to choose judges for the federal courts.
And at that moment, in 1991, it was Moynihan’s turn to choose, and his choice was Sotomayor. There is no evidence that anyone in the Bush I White House or Justice Department thought Sotomayor was a conservative, or even a moderate, but no one wanted a fight with Moynihan. “She was not our first choice,” recalls a third Bush I official, “but she was someone who was, if we were going to get a nominee confirmed to that position — essentially someone we had to go with.”
Note: This has been corrected to reflect that Sotomayor was nominated in 1991, although her confirmation did not come until 1992.
