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Roger’s Rules

Brace yourself. Take a Dramamine. You’ll be hearing about Appeals Court Judge Sonia Sotomayor ad nauseam in the coming weeks. Did I say “Sonia Sotomayor”? I meant, of course, “Sonia Sotomayor, the first Hispanic nominee to the Supreme Court.” It will be a constantly recurring epithet, like “swift-footed Achilles,” “gray-eyed Athena,” or (perhaps more to the point) “honest Iago.”

That Obama would nominate a female to succeed David Souter, who retires next month, was the unanimous opinion in the scribe-osphere. And of course a minority female would be particularly attractive to our politically correct president, even if this particular female minority was not the brightest bulb on the billboard. The air hadn’t stopped vibrating with the news that Justice Souter was taking his quill pen and heading back to New Hampshire before Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, emerged as a front-runner on the SCOTUS racing form. Comments there noted her qualifications — correct complement of chromosomes and suitable ethnic identity, above all, but also the requisite armory of left-liberal opinions without which no candidate for the Court under Obama need apply.

There were also some reservations. Jeffrey Rosen, writing on May 4 in The New Republic, for example, noted that “despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor.” Rosen mentioned Sotomayor’s temperament (hot) and her intelligence and legal competence (questionable). In short, in the words of one observer, Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, is “not that smart and kind of a bully on the bench.”

I don’t doubt it. But a lack of brains has never been an obstacle to legal preferment, and I see no reason to change our policy on that now. And as for being a bully: well, Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, won’t be the first bully to don the black robes. Granted, it’s not pretty. It’s not desirable. But I don’t see that it is disqualifying.

No, I think we have to give her a pass on matters of temperament and general competence. Matters of basic judicial philosophy, on the other hand, are another question. Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, believes that the job of judges is to make the law, not uphold it.

Don’t believe me? Look at this clip from a 2005 symposium at Duke University. The Court of Appeals, said Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, “is where policy is made.” She went on to note that she shouldn’t say that publicly — after all, cameras were rolling — but that, she said, was the truth of the matter. I hope that video clip is played early and played often. [UPDATE: I hope her 2002 comments at Berkeley about how it is appropriate for judges to draw upon their “experiences as women and people of color" in their judicial decision making are aired often as well. The more one looks into Sotomayor's record, the clearer it is that, as a friend of mine put it, identity politics is her judicial philosophy.]

To my mind, what Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, said there disqualifies her from her position on the Court of Appeals. It should render her beyond the pale for a position on the Supreme Court of the United States. Will it? Of course not. But it should prompt anyone who cares about the rule of law to oppose her nomination.

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