Testing time for Obama

Unless some previously unknown scandal or embarrassment surfaces, U.S. Appeals Court Judge Sonia Sotomayor will be confirmed as a Supreme Court justice. But it will be difficult to get the confirmation done over the summer, as President Barack Obama has asked, in advance of the court's October session. Senate Republicans, as is their responsibility, will expose Sotomayor's record and public statements to scrutiny. Hearings will be thorough but not likely to become emotional or destructive.

Sotomayor's story (as Obama's) is appealing. A Bronx Latina, raised by a hard-working, widowed mother, she went to New York Catholic schools, then to Princeton and Yale Law School, ranking high academically. Truth be told, her appointment is highly political. Obama, from the beginning, made it known that all candidates for the Supreme Court vacancy were women. On a short list, Solicitor General Elena Kagan and Judge Diane Wood were deemed the most distinguished substantively. But Sotomayor, in political terms, was a "threefer" — that is, a candidate who would bring Obama credits among women, Latinos, and in New York.

As both a district and appeals judge, Sotomayor was not regarded as an intellectual or conceptual thinker but, rather, as a meat-and-potatoes grinder of liberal/moderate outlook. She issued no important legal decisions. She also was known for sometimes badgering attorneys from the bench and for treating her staff impatiently.

There is nothing wrong, by the way, with any of the above. Past and present justices are not the towering figures which we might regard them to be. Only a few have been truly independent and groundbreaking in their thinking. (During the Johnson Presidency, I once managed a several-week overseas mission of public and private figures which included a sitting Supreme Court justice. We regularly had to rescue him from bars and cathouses along the way). A liberal federal judge, whose integrity and judgment I trust, told me earlier this week that Sotomayor, then not yet nominated for the court, was "just a so-so performer." The Supreme Court is no more populated with supermen and women than the Presidency or Congress.

Once confirmed, Sotomayor likely will be a reliably liberal vote on social issues and, given her prior record, pragmatic on other issues, leaning toward the "empathy" that Obama said he sought in his nominee. She is not what some liberals and Democrats had been hoping to see: That is, an intellectual powerhouse who could provide leadership in the years ahead. That person may yet emerge. Given the ages of those presently on the court, Obama is likely to nominate two or three other justices during his time in office. One footnote: Presuming that Sotomayor is confirmed, all members of the court will be former appeals-court judges.

The final shape of health-care legislation, which Obama has urged be passed by July 31, is not yet in place. As I wrote last week in Crosscut, moderate and liberal Democrats in the House are divided on the scope and cost of a plan; Senate Finance Chair Max Baucus has insisted the Senate version of the legislation be sufficiently bipartisan as to attract 10 or more Republican votes.

Business and labor executives, insurers, health-care providers, and consumer groups support the concept of reform. But, once legislation is finally introduced, they will disagree over the details. The big sticking point remains the prospective cost of a plan. With $1 trillion annual federal budget deficits looming for several years, the plan would cost another $1 trillion, although the administration has budgeted less.

Health legislation's fate will depend in large part on Obama's skillfulness in selling it to the American people as well as to the Congress. If he overreaches, and insists on a big-pricetag plan, he could lose the battle entirely. I expect him to pursue a characteristic pragmatic course, get half a loaf, declare victory, and come back later with additional proposals. In the end, health-care costs will continue rising and millions of Americans will remain without health-insurance coverage. Medicare and Medicaid costs, too, will continue to be on the rise, still awaiting a White House/Congressional fix.

On energy and environmental legislation, Obama has set a late-summer deadline as well for cap-and-trade and related energy policy proposals. Drafting of this legislation lags behind that of a health-care bill, so it is difficult to see the July 31 date as realistic. A shift from fossil fuels to alternative fuels will be costly and time-consuming. It also will be a tough political sell. Legislators of both political parties from oil, natural-gas, and coal-producing states will resist. Moreover, the shift will require consumers to pay added taxes and fuel costs in a difficult economic environment.

I can see an incremental health-care reform bill clearing the Congress this summer. Energy legislation will be much chancier and may have to be deferred altogether.