Posted by
Patrick Henry on Wednesday, May 27, 2009 4:29:38 PM
Barack Obama has nominated Sonia Sotomayor to be the nation's first Latina
Supreme Court justice. Unless she triggers a train wreck during the confirmation
hearings, there is litlle Republicans can do to block the nomination. There are,
nevertheless, some issues around the pick that need addressing.
What most concerns critics of the nomination is a speech Judge Sotomayor
gave in Berkeley, California, in which she stated that a "wise Latina, from the richness of her
experience, could render a better decision than a white male who had not lived the life."
The speech was followed up by an article she authored for La Raza Berkely Legal Review
that reinforced and expanded the same contention. There are so many problems with such
a public statement, let alone one made by a sitting judge, that one hardly knows where
to begin with the critique.
To begin with, the statement is blatantly racist, and not a little sexist. Judge
Sotomayor publicly contends that her race and gender afford her superior qualifications
to a white man. With only a couple of words changed, that is almost a quote from
the speech given in 1964 by Samuel Bowers in which he argued that blacks were
inferior in intellectual acumen to whites, and thus should never aspire to be judges
or elected officials. Samuel Bowers was the Imperial Wizard of the White Knights
of the Ku Klux Klan, who died in prison in 2006 where he was incaerated for life
because he blew up a civil rights worker. The point is that if it is a racist argument
coming from Bowers, then it is an equally racist argument from the mouth of
Sotomayor.
Her knockdown critique of the "white males" she considers less qualified than
herself is based on the fact that they have not "lived the life." But what life is it
that they have not lived? Does she mean growing up in the projects? Or being
of Puerto Rican descent? Undoubtedly her ascent through the legal ranks from
a childhood of relative poverty is remarkable and prasieworthy. But how does
that render her somehow wiser than Clarence Thomas, a black Supreme who
grew up fatherless and in abject poverty amid virulent white racism? Or from
Thurgood Marshall or Samuel Alito who have similar backstories? The "richness"
of life is not based on race or ethnicity, nor on where one grew up, but on the
variety and texture of experiences one has and what one has learned from them.
None of this, by the way, has a thing to do with the constitutional qualifications
for a Supreme. But if she wants to advance the argument, then she needs to back
it up.
She attempts that rather weakly in the La Raza (which means :the race") review,
but fails to advance even one compelling argument why a Latina is more qualified
for the bench than a black, Asian-American, white or male candidate. Can you imagine
the outcry if Justices Roberts, Alito, Scalia or Thomas even wrote in a journal
calling itself "the race?" This is a case of racist arrogance in its rawest and ugliest
form.
And there is her claim to be a "wise Latina." How "wise" is it to publicly tout
oneself above others on the basis of race and gender? And how wise is it to make
the statement, as she did at a Duke University forum that "policy is made by the
appellate courts?" How wise is it to boast that your judicial findings are based
on your own experiences as a female and as a member of a specific ethnic group?
The plain truth is that such statements are arrogant, reckless and completely
unworthy of one who would seek a place on the highest court of the land where
the paramount task is to interpret the constitution, not navel gaze.
But from all of this three clear truths emerge. First among these is that this
President is intentionally and self-consciously putting a racist, a subjectivist
and a liberal judicial activist who is more interested in rewriting the constitution
than interpreting it on the high court. The bill for this goes not to Sotomayor who
proudly is what she is. nor to the legislature placed in the unenviable position of
losing the Hispanic vote if they oppose her on ANY grounds, but to this president
himself who, in his unfathomable arrogance, has undertaken to overrhrow more
than two-hundred years of the constitutional principles on which America is based.
The bill for this outrageous nomination is his and his alone. And he should be
held to account for it at every opportunity.
Second, by heading down this road of "compassionate" judges, we are opening
a Pandora's box of subjectivism and special interst. If a Latina jurist is more
compassionate toward those with whom she shares racial or life experience ties,
where do those arguing contrary causes turn for fairness? There is a very good
reason why the statue in front of the Supreme Court Building wears a blindfold.
It is because justices are supposed to decide cases without respect to such things,
based on the law and the law alone. Judge Sotomayor has already publicly stated
that such is not her judicial philosophy.
Third, while this woman has no business whatever being a Supreme Court justice,
her confirmation is inevitable. But that does not suggest that all of these flaws in
her personal and judicial philosophy cannot be aired during confirmation, nor that
a continuing spotlight cannot be placed on her performance (and Obama's choice)
and when she behaves predictably that such behavor cannot be used for significant
political capital in the future. The Democrats are already conducting a full-court
press snow job. But none of it changes the fact that the president has used the
non-constitutional qualifications of race and gender as his primary indicators in
submitting the nomination. Let's hope that enough Senators have the intestinal
fortitude to at least call Sotomayor out and force her to either eat or defend her
remarks.