Conservatives are understandably chagrined at the nomination of Sonia Sotomayor to replace Supreme Court Justice David Souter. She is horrible on the Second Amendment. She is antagonistic toward business. And on it goes. But this, after all, is what one expects from a liberal Democratic president. What one shouldn’t expect is a justice who doesn’t believe in judging per se and, even more troubling, doesn’t believe in racial equality, at least not as most Americans understand it.
This is what should be the focus of her confirmation hearings.
On the judging front, the president let it be known he’s out for empathy — that is, the business (one supposes) of picking the “deserving” litigant and then finding the legal hook to justify the decision (because of course judges really aren’t supposed to do that sort of thing.) In what will be “Exhibit A” on the list of things a Supreme Court aspirant doesn’t want to say, Sotomayor was captured on tape with these morsels of wisdom:
Um, all of the legal defense funds out there, um, they’re looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law, I know. Um, um — [laughter] — I know. I’m not promoting it, I’m not advocating it, and, I’m … you know. [laughter]
The Senate might wonder whether this is a glimpse into her theory of jurisprudence or simply an example of poor judgment and taste.
In either case, one wonders what she thinks her job entails. The president is clear: it’s about fishing out the neediest, the most downtrodden, and the least powerful. The Supreme Court is composed, in his view, of nine community organizers who are out to right wrongs, regardless of their assigned task. (That task, for those who have forgotten, is to interpret the statutes and constitutional provisions which are before the Supreme Court and to render justice equally and impartially to all who come before it.) Does Sotomayor share Obama’s view, while intending to deceive litigants and the country about her legal reasoning which always (wow, like magic!) arrives at the “right” result?
And that brings us to the second substantial concern about Sotomayor. Stuart Taylor writes:
“I would hope 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.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001.
The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor — widely touted as a possible Obama nominee to the Supreme Court — has drawn very little attention in the mainstream media since it was quoted deep inside the New York Times on May 15.
It deserves more scrutiny, because apart from Sotomayor’s Supreme Court prospects, her thinking is representative of the Democratic Party’s powerful identity-politics wing.
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”
We are thus presented with a Supreme Court nominee who seems to doubt her own ability to render impartial decisions (must she recuse herself on a regular basis, then?) and the fundamental premise of our government — the part about “all men are created equal.” (Does she, like Reverend Wright, also believe “African and African-American children have a different way of learning”?) One wonders what candidate Obama would have said during the campaign about such a stark repudiation of the inherent intellectual equality of Sotomayor’s fellow citizens.