The Sotomayor Pick

"I would hope that a wise white male with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn't lived that life."

(With apologies to my Latina wife-who makes all the decisions in my family)


I have been thinking a lot about what I would write or not write about the nomination of Sonia Sotomayor to the Supreme Court. Of course, my detractors will accuse me of being an old white fuddy-duddy who longs for the days when the Supreme Court consisted of 9 white men. Of course, I could point to the support we conservatives gave to such folks as Clarence Thomas, Miguel Estrada and Janice Rogers Brown when they were nominated to high judicial posts by Republican presidents. I could point out the vicious attacks they were subjected to by liberal Democrats even though-no, expecially because- they were conservative minorities.

It is true, indeed, that in a multi-ethnic society like ours, it is absurd to have a Supreme Court that has no women or minorities. Actually, that situation hasn't existed to my knowledge since Lyndon Johnson appointed Thurgood Marshall to the Supreme Court. No, that is not the issue unless you are an unrepentent KKK-type. The issue is ideology.

Of course, we knew going in that a liberal president was going to pick a liberal judge to the Supreme Court, and with Sotomayor, this is no surprise. I have heard somewhere that she is a former prosecutor who is tough on crime. If so, that is welcome news though I have seen too many of those former prosecutors who were only getting their trial experience before becoming defense attorneys and making the big bucks. However, it seems from her documented statements that she is big on the ethnic politics. In addition, there is her comment a few years back at Duke University Law School (to knowing snickers from the audience) that public policy groups go after appeal court judges because that is where policy is made. Troubling.
It is scary because in our democratic society, public policy should be made by the people through their elected representatives. This makes it appear that she believes in an activist court to bring about social change.

In the coming months, we will hear about her high rate of being overturned by the Supreme Court that she seeks to join and her summary dismissal of the New Haven Fire Department reverse-discrimination lawsuit. Now there are other whisperings coming out from lawyers who have appeared in her court who talk of poor judicial temperament and a tendency to berate lawyers.

But as Senator Charles Schumer says, Republicans would oppose her at their peril, an obvious veiled threat not to oppose the first Latina woman to be nominated to the Supreme Court. What should the Republicans do?

There's not much they can do. They don't have the votes. They should do all they can to probe the above concerns. Then they should give her an up-or-down vote, which the Democrats failed to do with several of George W Bush's nominees. They will, of course, lose. All the while, the Democrats and the liberal activists will try to intimidate the Republicans with chareges of trying to keep a Latina woman off the court-ignoring the examples of Estrada, Brown and Thomas.

Ultimately, however, it should not be about race or gender. Personally, I don't care if all 9 justices on the court are female Latinas, Asian-American or African-American. If they are conservative, I'm for them. The important thing is that true justice and the law should be color-blind. I have my doubts about Judge Sotomayor.

Oh, that quote at the beginning of this essay? Forget it, please. I may be nominated for the Supreme Court someday, you know.