Sotomayor Compelling but not Court-Worthy

Sotomayor Compelling but not Court-Worthy

Commentary by Sanford D. Horn

July 12, 2009

Let’s get the buzzwords out of the way so we can discuss what’s really important here. This is not about gender, as the Democrats blocked the Bush appointment of a qualified Janice Rogers Brown via filibuster. This is not about race – see the previous sentence about Ms. Brown who also happens to be black, not that that should matter. This is not about ethnicity, as the Democrats blocked the Bush appointment of a qualified Miguel Estrada, a native Honduran, via filibuster.

Both Brown and Estrada were nominated to the DC Circuit Court of Appeals. And let the record show that Ms. Brown is the daughter of black sharecroppers who grew up in segregated Alabama, yet little was heard about her background from the so-called mainstream media. And even less has been heard about Justice Benjamin Cardozo (1870-1938), nominated by Republican President Herbert Hoover in 1932. Cardozo fits two minority molds having been both Jewish and of Spanish and Portuguese heritage.

This is not about how sympathetic one is based upon how hard one’s upbringing was. If that were the case, Clarence Thomas would not have been harangued by the hypocritical Democrats on the Judiciary Committee two decades ago. Anyone who has read or spoken about her past will admit to being impressed about how Judge Sonia Sotomayor has risen up from the Bronx projects of her youth to Cardinal Spellman to Princeton as an undergraduate and to Yale Law School. Not to take away from her accomplishments, but Sotomayor herself has admitted benefiting from a system of affirmative action. So too for Justice Thomas, but it does not rule his life or his decision-making process on the bench.

Compelling is the oft-used word to describe Sotomayor’s life story, and it is, but that does not give her automatic entrance onto the highest court in the nation. The 12 Democrats sitting on the Judiciary Committee can praise Sotomayor from here to San Juan and back, but all the platitudes in the world are merely a façade for the bigger issues that plague this nominee. Issues that the seven Republicans on the same Judiciary Committee will bring up to legitimately question the validity of this nominee’s fitness to serve an unchecked lifetime appointment.

This is about whether or not Sonia Sotomayor should serve a life term on the Supreme Court – the highest court in these United States. She should not. Using the Senator Obama method, sure Sotomayor is qualified, but that doesn’t mean she will get the votes from those who oppose her politically. Obama, when Senator of Illinois, practically said the same thing of current Chief Justice John Roberts, an eminently qualified jurist who somehow came up short in Obama’s mind.

Make no mistake, the Obama appointment of Sotomayor is both shrewd and overtly political. Shrewd as it puts the GOP senators’ collective backs to the wall already having enough problems securing Hispanic votes, and political, as it all but locks in Hispanic loyalty to Obama and the Democrats for the selection. Unfortunately, too many elected Republicans are afraid of their own shadows and will not have the intestinal fortitude to stand up and vote against this nominee who will earn confirmation with well more than the necessary votes required. There are too few Tom Coburns (OK), Lindsey Grahams (SC) and Jeff Sessions (AL) in the GOP and too many Susan Collinses (ME), Olympia Snowes (ME) and George Voinoviches (OH).

Those who question whether or not the Republican members of the Judiciary Committee should use a full court press in their questioning of a nominee who will almost surely garner confirmation do not understand the process. This is not about the votes, but instead an opportunity for the members of the Senate who must vote yea or nay on Sotomayor to understand her judicial philosophy and the direction in which she sees the Supreme Court moving during her life tenure. The questioning will not entail hammering of a nominee, but a tempered, yet detailed probing to unearth the information required to make a cogent decision. This is also an opportunity for the American people to hear from Sotomayor first hand in an effort to gage what kind of justice she might become.

The Democrats will remind us that Judge Sotomayor is a mainstream candidate for the Supreme Court, after all she was initially nominated to the bench by President George Herbert Walker Bush upon the recommendation of the late Senator Pat Moynihan (D-NY). That the first President Bush appointed her is meaningless – see also retiring Justice David Souter, a disastrous appointment whose departure can’t come soon enough.

The bottom line of Sotomayor’s nomination ought to be about her words, her beliefs, her biases and her record. Having sat on the bench now for 17 years, Sotomayor has enough of a record that neither she nor her supporters can claim her words are being taken out of context. Sotomayor has tremendous experience, which clearly can be viewed as a double-edged sword.

Perhaps most damning are the 32 words she has uttered on more than one occasion. “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] that a white male who hasn’t lived that life.” The word “better” is most troubling as Sotomayor is deigning to say outright that her background makes her decision-making process superior to any white male.

Juan Williams, author and commentator on National Public Radio as well as on Fox News, is certainly no conservative. He called Sotomayor’s statement racial on July 12. Rush Limbaugh said the same thing, but was excoriated for the comment simply because he is a conservative lightening rod. Sotomayor has since said she wished she had said those words in a better way. She meant what she said and has no regrets about it; and that’s fine – it gives us greater insight into how she will behave on the bench.

Our system of jurisprudence in the United States is supposed to be colorblind. Now, I am realistic enough to comprehend that clearly it has not been, is not now, and probably will never be in the future, but we do tend to inch ever so closer to that desire. Judge Sotomayor would set that notion back in its paces considerably. Perhaps the notion of a fair and balanced judicial system is anachronistic to both Obama and Sotomayor in this era of touchy-feely and empathy first in the courtroom, but that is not what the Founding Fathers laid out more than 200 years ago in a system that has admittedly been imperfect, but is still the best on record.

Most people don’t care if the nine jurists on the High Court’s bench are Latina, Latino, black, white or Asian, so long as they are not just qualified, but understand their purpose. The purpose is for the justices to interpret, not rewrite, the laws of the land. To interpret the Constitution and not write policy. Already, Sotomayor has that strike against her as she has said on more than occasion, that the Court of Appeals, where she has served, is where policy is made. That is a dangerous idea. The making of policy and creating legislation is, according to the Constitution, the purpose of the United States Congress – even as incompetent as it is.

Sotomayor has also suggested that gun ownership is not a fundamental right and that the states are not held to the Second Amendment of the Constitution. Last I checked, it is the 10^th Amendment to the Constitution that tells us that that which is not defined by the previous nine amendments is left to the states. The second amendment does provide for “the right of the people to keep and bear arms, shall not be infringed.” She has also come down on the side against people’s personal property rights on a number  of cases.

Then there’s the Ricci case, whose decision was just handed down by the Supreme Court less than three weeks ago. Twenty men, 19 white and one Hispanic sued the New Haven, CT Fire Department over a promotions exam that they passed but was thrown out denying the firefighters their just promotions simply because no black firefighters who took the same test earned a score qualifying them for the same promotion. The US Court of Appeals for the 2^nd Circuit, on which Sotomayor sits, upheld the lower court decision to deny the passing firefighters their promotions.

The Supreme Court overturned the ruling made by Sotomayor’s panel in a 5-4 decision on June 29. Sotomayor opined that in essence it is permissible to discriminate against one group in favor of another group. That the firefighters who passed the same test all others took should not be given the promotions they earned fairly is unconscionable. That the white and Hispanic firefighters should be penalized because the black firefighters were among those who did not pass the exam is absolutely discriminatory and it is a discrimination supported by Judge Sotomayor. And this was not the first time Sotomayor has been overturned by the Supremes – in fact four times out of six her decisions have been upended by the High Court.

Judge Sotomayor’s actions, judgments, rulings and writings are demonstrative of what is called judicial activism – the creation of rights not explicitly stated in the Constitution. This is not what being a Supreme Court justice is about, and although Sotomayor will almost surely be donning a High Court robe the first Monday in October, she must be watched carefully. The Senate must do its job – that’s what the system of checks and balances is about.

Sanford D. Horn is a writer and political consultant living in Alexandria, VA.