Today President Obama announced his choice to replace David Souter on the U.S. Supreme Court: Sonia Sotomayor. Ms. Sotomayor is a dream candidate and likely to be quickly approved. She was first nominated to the bench by a Republican, the first President Bush, and she had the wisdom never to have children, which eliminates the otherwise automatic nanny-gate fiasco any time a woman is nominated for anything.
She has a compelling story which the Republicans will fail to jump on even though it provides ample proof – as does our President’s ascendancy -- that America is the land of opportunity and that anyone who works hard can achieve beyond their wildest dreams in this great country.
But we will probably miss the opportunity to tell that story and instead we will allow the Democrats to bathe in her glory while simultaneously telling the average American that you cannot achieve anything without the government’s help.
How did she manage to graduate summa cum laude from Princeton and become editor of the Yale Law Review when the United States is such a white-male-dominated bastion of unequal opportunity and institutionalized racism? Perhaps she did it by not believing the Democrats’ version of two Americas and by realizing that the American dream is available to all its citizens.
Now, all this is not to say that I’m thrilled with her selection. She has written some opinions recently that I am entirely opposed to, most notably her ruling supporting the City of New Haven’s decision to discard the firefighter promotion exam results when no black or Latino passed the exam. I would think her own life story would tell her that it is not one’s race or ethnicity that matters, but their abilities. Somehow, she was able to make her way through three separate exams to achieve her goals.
Her confirmation hearing will be interesting because, as an appellate court judge, she has been the author of a number of appellate decisions that her future brethren on the court have overturned. While Obama may want to paint her as a centrist, moderate jurist, that does not seem to reconcile with her record.
Yes, she “saved” baseball by ending the strike when, as a district court judge, she ruled in favor of the player’s association and against the owners who had been trying to end free agency and salary arbitration. With this pro-union decision, her liberal bona fides were secured.
But, as they say in the TV infomercials, that’s not all. We also have her statements to guide us as to her view of not just race and gender issues, but the issue of the role of the Supreme Court. And none of these will warm a Republican’s heart.
In a speech given at the liberal Valhalla, U.C. Berkeley, back in 2002, Sotomayor embraced the idea that a jurist’s gender and racial identity would influence their decision-making. She said in part, "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society....” She then elaborated, “I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that - it's an aspiration because it denies the fact that we are by our experiences making different choices than others....”
"Our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."
I haven’t seen such blatant white male bashing since the Wanda Sykes baby shower.
With her belief that the gender and race of a jurist i is at all relevant to making a just decision, one wonders how the all white Supreme Court gave us Brown v. Board of Education or an all male Supreme Court gave us Roe v. Wade.
There is no question that Sotomayor intends to be an activist judge as she has gone on record that it is in the highest courts that does more than merely interpret the law.
During a 2005 panel discussion at Duke University, Sotomayor answered a student’s question about the difference between the Federal District Court and the Circuit Court of Appeals, by saying that the Court of Appeals is where "policy is made." She went on to say, "All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [Audience laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [Audience laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application."
In addition to obvious elocutionary gifts, Ms. Sotomayor seems to suffer a bit of Biden-esque excessive sharing. This could make this question and answer session during the confirmation hearings DVR-worthy.
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