Obama nominates known judicial activist Hon. Sonia Sotomayor for the U.S. Supreme Court
I admire Justice Antonin Scalia, but I could not tell you where he was born, or under what circumstances he grew up. I don’t know his mother’s name. I don’t know his ancestry. I just know that, in weighing any particular controversy, he looks first to the United States Constitution, and extrinsic issues such as background, experiences or real-world consequences do not enter into it.
Enter the Hon. Sonia Sotomayor.
Now, I have no doubt that she is intelligent. I have no problem saying that her story is absolutely extraordinary. But her story has no place on the bench of the highest court in the land.
A few issues are going to be at the forefront of her confirmation. First will be her remarks during a 2001 speech to law students in Berkeley, California, where she said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Second will be her decision to uphold a lower court’s ruling in Ricci v. Destefano and dismiss outright a white firefighter’s race discrimination case.
Ricci was a dyslexic New England firefighter who was among 77 colleagues to take an exam for a promotion within the New Haven Fire Department. Because of his dyslexia, Ricci was forced to put in even more effort, including the need to hire someone to read his textbooks onto audiotape and leave a second job to free up extra time. At the end of the day, Ricci was No. 6 out of the 77.
He and 17 other firefighters never received a further shot at the promotion, however, as the city disregarded the test results because, out of those 18 top-performing firefighters, 17 were white, and one was Hispanic — none of the more than two dozen black firefighters who were among the original 77 to take the exam were represented, and rather than risk being dragged into court for not promoting a single black firefighter, the city of New Haven scrubbed all results.
Ricci was among the 18 firefighters who filed suit, claiming race discrimination. Sotomayor was on the three-judge panel which dismissed the case summarily, and was the subject of a rabid dissent by a fellow judge and Yale Law alum who excoriate her for dismissing the case without substance. Among other issues, the law requires that the court consider whether or not the city’s decision passes “strict scrutiny,” essentially a consideration of whether the decision to tank the test results in full was narrowly-tailored to the advancement of a compelling state interest. Nothing of the sort was considered — the court denied rehearing en banc, and did so in an unpublished opinion. Her decision will be considered by the Supreme Court next month and, much like almost every other time one of her decisions has reached the high court, it will likely be overturned.
So, here’s a woman who may be extremely accomplished and who may have an intensely compelling personal story, but who also engages in the sort of identity politics adored by the left but to which justice is supposed to be blind. Contrast her statement that wise Latina judges could reach a better decision than their white male counterparts with her decision to dismiss Ricci. Consider the focus being placed on race in what was billed as the post-racial age of Barack Obama.
In short, what we are going to see during the upcoming confirmation process is the quintessential difference between the political left and right when it comes to the Constitution, the law, and the difference between logic and emotion. The media will do its level best to shape the way this process unfolds — they will tell Republicans to take it easy on Sotomayor so as to build credibility and political capital for the fight over the next, undoubtedly more important vacancy; they will tell the American people that experience trumps impartiality, that story trumps substance, that making this woman the second Hispanic Justice and the third female Justice somehow exceeds the need to confirm a qualified Justice.
Republicans must not back down here, must refuse to pull punches, and must take the debate to their constituents as well. The people must understand that empathy, that Sotomayor’s “sense of compassion” touted by Barack Obama has no place in the decision-making process on the Supreme Court bench. The people must understand what’s at stake, and must respond accordingly, as the result of Sotomayor’s confirmation will have an effect upon this nation for a generation — not only because the disposition of this current process will affect Sotomayor’s own presence on the bench, but because it will further shape the process with regard to Barack Obama’s next nominations for inevitable vacancies provided by the aging Justice John Paul Stevens and the ailing Justice Ruth Bader Ginsburg.
This is judicial activism versus strict constructionism, a living Constitution versus a static blueprint for freedom put forth by our nation’s founders. This, by and large, is the fate of America, is tremendously important, and should be treated as such.