So what political calculation might underlie President Obama‘s decision to nominate her anyway, despite his various suggestions that he would like to make a consensus pick?

It’s possible that Obama was simply wowed by her up-from-modest-circumstances life story, her supposed "empathy" for the poor and powerless, her summa cum laude performance at Princeton University, her judicial opinions on obscure subjects, or her performance when Obama interviewed her.

But the political payoff of naming the first Hispanic justice — and a woman to boot — seems to me the key. This is a shrewd nomination politically, if not necessarily a good one jurisprudentially, and not only because of the obvious payoff with Hispanic voters.

The choice of Sotomayor also puts Republicans and moderate Democrats who may be deeply unhappy with her jurisprudence in a lose-lose position, and Obama in a win-win position.

If Republicans attack Judge Sotomayor’s more controversial actions, they risk provoking a backlash among Hispanic voters, who have already been moving into the Democratic column in droves.

On the other hand, if Republicans hold their fire to avoid offending Hispanic voters, the president gets the benefit of installing a justice who seems deep into Democratic identity politics without the cost of an especially contentious confirmation battle.

The Republican dilemma is underscored by the fact that the Sotomayor actions they might be most eager to attack are themselves especially likely to engage the sympathies of Hispanic voters.

In a 2001 speech that I have criticized, for example, Judge Sotomayor suggested that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life." This will strike many Republicans as the essence of the ethnic and gender stereotyping that liberals once properly abhorred.

But with Republicans already in danger of being seen as the white-male party, rushing to the defense of white males may not be a winning argument politically.

Consider also Judge Sotomayor’s assertion in the same speech that "the aspiration to impartiality is just that — it’s an aspiration, because it denies the fact that we are by our experiences making different choices than others"; and her suggestion that impartiality may be impossible "in most cases"; plus her implication that "by ignoring our differences as women or men of color we may do a disservice both to the law and to society."

These statements may seem to many Republicans and centrists to reek of identity politics and exude the potential for judicial bias. But again, attacking a Hispanic woman judge for practicing identity politics may not be a political winner for Republicans.

Then there is Judge Sotomayor’s vote to uphold what strikes me as raw racial discrimination against white New Haven firefighters who were denied promotions that they would otherwise have received because no blacks did well enough on a test of job-related skills to qualify.

Would Republicans risk more white-male-party stereotyping if they attack this decision? Perhaps. And the fact that one of the firefighters who was unfairly denied a promotion happened to be Hispanic might just get lost in the noise.

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