Barack Obama is playing paint by the numbers.

With his selection of  Sonia Sotomayor, Obama has validated the philosophy of former US Senator Roman Hruska (R-Ne). Hruska defended the unsuccessful nomination of G. Harrold Carswell to serve on the US Supreme Court by stating: “[T]here are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozoes.”

Hruska’s endorsement speech in support of Carswell branded the senator as a national laughingstock. Carswell’s nomination was defeated in the Senate by a vote of 51 to 45. Carswell was the second consecutive judicial nominee defeated as President Nixon attempted to fill the vacant seat formerly held by former US Supreme Court Justice Abe Fortas.

Nixon submitted the name of a third nominee, Harry Blackmun, for appointment to the US Supreme Court before the vacancy was filled. Once on the court, Blackmun was a reliably conservative vote for a brief time before he tacked to the far left. His most infamous opinion in Roe v. Wade created the heretofore undiscovered constitutional right to unrestricted abortion on demand  throughout all three full trimesters of a pregnancy.

Obama’s choice seems to place political considerations above respect for the law. There is a precedent for his power play. For the first seventy years following the Civil War, black voters, where they were permitted to vote, were reliably Republican in their politics. This began to shift following the start of the Great Depression and former Chicago mayor, Edward Kelly, succeeded in changing the balance of power permanently by persuading Alderman William Levi Dawson to switch parties in 1939. Dawson’s political ambitions had been blocked by a rival black Republican ward committeeman, but, as a  Democratic candidate, he was elected to Congress fourteen times and eventually came to control the votes in six predominantly black Chicago wards. Gradually, black voters throughout the country followed suit and migrated to the Democratic party. Obama hopes that his selection of Sotomayor will yield similar political dividends on a national level.

Miguel Estrada, a naturalized Honduran immigrant, was denied an appointment to the District of Columbia Circuit Court of Appeals by Democratic members of the US Senate who were determined to deny former President George W. Bush an opportunity to appoint the first Hispanic member of the US Supreme Court. Estrada’s nomination to the DC Circuit Court of Appeals was viewed as a stepping stone appointment that would have culminated in his appointment to the US Supreme Court. Race conscious Democrats feared that such an appointment would result in a political realignment that would see a significant number of Hispanics choosing to identify with the Republican party. Throughout his elective career, George W. Bush secured a significant number of Hispanic votes, although sometimes falling short of a majority, and the Democrats were unwilling to support any judicial nominee that might promote Latino voting for the GOP.

Despite receiving an affirmative endorsement from the American Bar Association, Estrada’s nomination to the Circuit Court was repeatedly blocked due to filibuster tactics employed by the Senate Democrats. The prospect of a Harvard educated, Latino serving as an Associate Justice of the US Supreme Court did not please the Democrats. Using the threat of a filibuster to block judicial appointments was unprecedented. Privately, many observers were upset that the Senate Republicans did not force their Democratic colleagues to conduct an actual around the clock filibuster in the Senate chamber. The mediocrities succeeded simply by holding procedural votes and merely threatening to filibuster. After months of delay, with the Republican senators unable to obtain sixty votes to invoke cloture and suspend the debate, Estrada withdrew his name from consideration. Estrada reportedly had a majority of the Senate prepared to support his appointment, but not enough votes to overcome the Democratic filibuster. Afterwards, Senator John McCain (R-Az) and “the Gang of Fourteen”  brokered a lukewarm compromise to limit future filibusters concerning judicial nominees.

Troubling reports have surfaced that linked Sotomayor to activist groups, some of which were funded and sponsored by the billionaire George Soros, that worked to block Estrada’s appointment to the District of Columbia Circuit Court of Appeals. If such accounts are accurate, the upcoming Senate confirmation hearings may prove to be lively. One wonders if Senator Arlen Specter (?-Pa) regrets the loss of his seniority now that hearings are scheduled before the Senate Judiciary Committee? Specter may no longer command the spotlight during the hearings.

If the appointment of Sonia Sotomayor is confirmed, it is unlikely that her arrival will immediately alter the balance of power on the court. The retiring Associate Justice, David Souter, has been a reliably liberal vote since the time of his appointment by President George H. W. Bush. Souter was a cipher promoted by former White House chief of staff and New Hampshire governor John Sununu. The supposed masterstroke was that  Souter had virtually no paper trail for the Democrats to attack. Approved on a vote of 90-9, with such worthies as Senators Edward Kennedy and John Kerry condemning Souter as a conservative extremist in the mold of Robert Bork, Souter proved to be an absolute disappointment on the bench. Sununu had predicted that Souter would be a “home run” for conservatism, but once in office Souter proved to be a leftist. Justice is blind and so was Sununu.

For the diversity minded, Benjamin Cardozo, who served as an Associate Justice of the US Supreme Court following a noteworthy judicial career in New York, was the first Latino to serve on the high court. Cardozo was of Portugese ancestry.

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Daniel J. Kelley is an attorney and a regular contributor to “The Chicago Daily Observer.”