Scrutinising Sonia

Ms Sotomayor ruled against them. She argued that although the city acted out of concern about race,its decision was facially race-neutral. To her critics,that argument makes no sense. But Americas racial jurisprudence is rather muddled. The city would surely have been sued whatever it did. The case is now before the Supreme Court.

The coming argument about Ms Sotomayor will be riven with identity politics. Mr Obamas feminist supporters have been urging him to pick a woman to replace David Souter,the Supreme Court justice who recently announced his retirement. They are unhappy that only one of the nine incumbents is female. Many Hispanics,meanwhile,are keen to see the first Hispanic on the nations highest court. Ms Sotomayor ticks both boxes.

Introducing Ms Sotomayor to the nation,Mr Obama applauded her intellect and her broad legal experience. She has been an appeals-court judge for 11 years. She has also served as a prosecutor and a corporate litigator. And unlike any of the current justices,except the man she is replacing,she has served as a trial judge,presiding over some 450 cases.

But Mr Obama made it clear that her personal background matters at least as much to him. Her parents were from Puerto Rico. She grew up in a tough part of the South Bronx. Her mother was a nurse. Her father,a factory worker,died when she was nine. As a child,she was diagnosed with diabetes and told it would scupper her dream of becoming a detective. But she studied hard,came top of her class at Princeton and edited the Yale Law Journal.

Americans are impressed by her biography. But some are perturbed by her apparent belief that her sex and ethnicity will make her a better judge. Justice Sandra Day OConnor is said to have said that a wise old man and a wise old woman will reach the same conclusion in deciding cases. I am not so sure that I agree, she told a Californian audience a few years ago. 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 hasnt lived that life.

Conservatives argue that race and sex should be irrelevant when promoting judges-or firefighters,for that matter. They also think judges should apply the law impartially. Ms Sotomayor seems hazy on this point. In that speech in California,she said she agreed that judges must transcend their personal sympathies and prejudices,but added: I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of colour we do a disservice both to the law and to society.

Stirring things up

To pre-empt another line of criticism,Mr Obama assured Americans that Ms Sotomayor understands that a judges job is to interpret,not make,law. Conservatives believe that elected politicians should make laws and judges should apply them,or throw them out if they violate the constitution. They fear that Ms Sotomayor takes a more expansive view of judicial authority. She once said that the appeals courts are where policy is made; though she immediately backtracked,perhaps mindful that she was being filmed. On another occasion,however,she said that the duty of a judge is to follow the law,not to question its plain terms.

Some observers think Ms Sotomayor will make little difference to the Court,since she is a liberal replacing another liberal. Not so. At 54,she is 15 years younger than Mr Souter,and Supreme Court appointments are for life. And Mr Souter was no stereotypical liberal. He tended to side with the courts liberals on social issues such as abortion. But he took a conservative view of frivolous lawsuits against corporations and excessive punitive damages.

How Ms Sotomayor will shape the court is hard to discern. In cases where plaintiffs allege discrimination because of race,sex,disability or age,she has usually sided with the plaintiffs. But she once ruled that the right to free speech barred New York City from firing an office worker for posting a racist letter.

She has never ruled on gay marriage,an issue likely to come before the Supreme Court before long. Her views on the death penalty or executive power are unknown. She once ruled against an abortion-rights group,but the case turned on whether the government can attach strings (specifically: dont promote abortion) to money it gives to foreign charities. She said it can,which was hardly controversial.

Her decisions as an appeals-court judge will be minutely examined in the coming weeks. Gun-rights absolutists are up in arms,so to speak,about her view that the second amendment does not apply to the states. (In Maloney v Cuomo,she ruled that New York could ban a martial-arts weapon consisting of two sticks linked with a chain.) Property-rights enthusiasts shudder at her ruling,in Didden v Village of Port Chester,that the government could seize a mans land so that a developer could build on it,even though both parties wanted to build the same thing-a pharmacy. Economists sigh that she ordered the Environmental Protection Agency not to weigh costs against benefits in enforcing certain provisions of the Clean Water Act.

Yet for all the heat Ms Sotomayors nomination is generating,she will almost certainly be confirmed by the Senate. She may be left-of-centre,but that is what people expect from a Democratic president. Nothing in her record is wildly out of the mainstream. And Democrats have an ample majority-at least 59 seats out of 100.

Republicans,meanwhile,are treading softly. They are traditionally easier on the other partys judicial nominees than Democrats are. Bill Clintons two nominees were confirmed by 96 votes to three and 87 to nine respectively. Some Republicans say their party should copy the tactics of the Democrats,who launched aggressive and personal attacks on conservative nominees such as Samuel Alito,Clarence Thomas and Robert Bork. But cooler heads retort that this would backfire: Ms Sotomayor will be confirmed anyway,and yet more Hispanic and female voters will desert the Republican Party.

Barring some unforeseen scandal-and one assumes she has been carefully vetted-Ms Sotomayor will join the Court in time for its next session. As an appeals-court judge,she was always obliged to defer to precedents set by the Supreme Court. Once on the Supreme Court she will be free to rule as she pleases,for two,three or even four decades to come.

The Economist Newspaper Limited 2009