President Obama has been so surefooted in playing politics ever since he arrived on the national scene that I am hesitant to suggest that he has made a political mistake, but that may be the case with the nomination of Sonia Sotomayor to be a Justice on the United States Supreme Court. There might be a bad political outcome even if she is confirmed by a wide margin.

Obama has been very successful at presenting himself as the post-partisan President because he does not get embroiled in the cultural and structural issues of the two decades that preceded his presidency. He is expert at not picking fights that he doesn’t have to. He has shelved the issue of gays in the military, as he has the issue of human rights in China. He isn’t interesting in fighting for an integrated national system of health care, the issue that divided the Clintons from the Congress, the Republicans, and the people, but wants to extend benefit categories so as to include more and more people and provide a model program for those outside private insurance. Nor is he developing a plan he wants Congress to accept, albeit with some tinkering. To the contrary, he is letting Congress shape the health care bill, and he will pretty much accept whatever he gets as the best he can do. That way, every bit of legislation passed is a success—as is General Motors being guided into bankruptcy when, had he promised to save the company some months back, the slide into bankruptcy would have been regarded as his failure rather than the result of his prudent management of the fact that General Motors could find no other way out.

That track record of turning the page on past formulations of issues is nowhere clearer than in his dealing with race relations. He is, on the one hand, not a firebrand or an advocate nor, on the other hand, someone who neglects the significance of his race. Rather, he treats his race as a fact of historic significance but only coincidentally related to his own qualities of character and mind and career, which, he believes, are what brought him the trust of the American people. He contextualizes his own rise to eminence as the sort of thing that happens in America and has happened before in America with members of other ethnic groups which also took pride in the success of their more distinguished members. That is not the way Sotomayor’s record has been trotted out. A great deal has been made of her biography: her hard scrapple roots squared with her academic achievements by noting that she never forgot where she came from (with that Bronx accent, how could it be otherwise?) and because she believes that her background gives her a special understanding that will be relevant in at least some of the cases that come before her. I already sniff too much biography designed to overcome what may turn out to be a lack of substance.

And here comes the Ricci case, with which she is so closely identified, which brings back all the issues of affirmative action that were thought to have been settled by Sandra Day O’Conner’s decision in the University of Michigan cases when she found that racial preferences in some form or other may have to be with us for another generation. The Ricci case is a bad one for the defenders of affirmative action because no where in the record is there a finding that the tests for the New Haven firemen were in anyway biased or not job relevant, only that they had to be set aside because they did not meet the desire of the City to have some unspecified number of Black and Hispanic test takers pass the test. Is reverse discrimination unconstitutional? The Sotomayor nomination makes us revisit that question, a bad thing from Obama’s point of view, and even worse given the fact that Sotomayor had found in favor of the city without issuing an opinion that examined the issues. That was a chance for this jurist to have used her supposed combination of talents as a smart lawyer and a Latina to have advanced public discussion. But it may be the case that she is smart and industrious without being thoughtful. Obama is therefore stuck with the legacy of confirmation even should she be confirmed. The clock will have been set back in that we will again be arguing old issues, just as was the case when Obama had to argue the sociology rather than the substance of his preacher being a throwback to the liberation theology of the Sixties and the Seventies.

But what if it turns out that she is all façade and little substance? Few of her proponents see her as a shining intellectual light that could duke it out with Scalia. What they see her as is a competent jurist who works on a case by case basis settling things in technical ways whenever she can. Republicans have not yet taken her measure, lest they get caught up in attacking someone who has become an icon in the space of twenty-four hours. Over the next few days, however, they will meet her one on one and so will probe not so much her position on cases as whether she appears to have depth, whether she talks easily about the nature of law and its inherent limitations. Should she not pass this test, should the Republican senators smell blood in the water, then you can be sure that the questioning of her at the Judiciary Committee will be more than strident; it will be downright nasty. They will try to rattle her into misspeaking or relying so much on biography that viewers of the nightly news will find her of insufficient stature to serve on the Court. Obama may have satisfied himself that she is no Harriet Meirs. But that is not the standard. Is she capable enough, clearly masterful enough about the law, so that she can get through by intimidating the opposition into silence, which was clearly the case with Alieto and Roberts, as it was with Ginsburg before them. There is a reason an academic pedigree has proven so important in recent years: it gives you some protection against the sharks, even if Bork showed what happens when you get in the water with the sharks. The question is whether Sonia can swim.

Why, then, did Obama nominate her rather than some of the more intellectually credible members of the judiciary—or even someone outside the judiciary who would not be required to pass muster in this way. Napolitano could have begged off most questions by saying she had not dealt with these matters recently, having had to govern a state and then look out for the defense of the homeland, but that she was confident she could come up to speed soon enough, which would nevertheless be considerably after the confirmation hearings had ended.

It is necessary to remember that Obama is himself a sophisticated student of the Constitution. He taught constitutional law and we haven’t had someone in the Presidency who did that since—well, since Bill Clinton. Obama knows enough to know that there is just so much you can do with black letter law and theories of constitutional interpretation. It winds up being bullshit, such as the present controversy in some state courts about whether the fact that same sex marriage had never been specifically excluded from marriage (until recently) means that it is or is not included in the word “marriage”. That is a pointless exercise because you can only decide whether a qualification of a term is implicit in the term by examining the context; the qualification is not entailed by the term itself.

Obama’s emphases in the courses he taught at the University of Chicago Law School was on the way the Constitution and the Court system were used to deal with important policy issues, what role the Supreme Court played in moving along or hindering one or another solution to a policy issue. In other words, Obama was a “consequentialist”: what is important about a Supreme Court decision is not how it reasons or parses words but in what follows from a decision made in one direction or another. A Supreme Court appointment should, therefore, be someone who, as the phrase now has it, “is empathetic”, which is code for saying that they will focus on what difference decisions make rather than on the procedures for getting there. Sotomayor is smart enough to provide a legal gloss for what she thinks is right—though that power seems to have failed her in the Ricci case. We will see if Obama has been so clever that he gets the Justice he wants by appealing to biography and sufficient smarts to make her appear competent, or whether he is too clever by half in having proposed a nominee who is not bullet proof but is regarded as sufficiently well armored so that she can get across to the other side of the battlefield.