Rags to Robes

In the apparently awful, corrupt or “unfair” country that Barack Obama wants to “change” into some sort of neo-fascist Italian or European socialist utopia, a Hispanic woman aged 54 has been nominated by him to sit on the Supreme Court of the United States. Could Sonia Sotomayor have achieved such stature in say, any other country? Notably, Sotomayor rose from a poor background in the Bronx projects where her uneducated, laborer father died when she was only 9 years old. She studied at Princeton University and graduated Yale Law. Not bad for such an awful country to allow such a “rags to robes” story.

Unless some horrid lapse of character is revealed in the confirmation hearings, Justice Sotomayor will be confirmed. The Democrat majority all but guarantees it. The media and Obama have already made much of the typically American success story aspect: background of poverty, constrained by being a woman, Hispanic, diagnosed with childhood diabetes, etc. yet overcoming it all to become a career success. Her judicial experience and legal opinions are almost an afterthought. That is until the process moves to the hearings. Critics will seem peevish or partisan when they challenge Sotomayor on her record. Historically, Republicans have been notably less aggressive than Democrats in testing nominees that are viewed as being on the opposite end of the political spectrum. There are however some areas that ought to be probed.

The esoteric legal aspects are not my bailiwick so I’ll leave that to the omniscience of her interrogators. Her judicial experience is of course in the public record and so she seems qualified. However, at least one critic has expressed the view that of the justices on Obama’s shortlist, Sotomayor was the least qualified among them. What matters most I think are her views regarding the Constitution, the role of the Court and the principle of justice.

With respect to the Constitution it appears that Sotomayor is probably vibrating on the same wavelength as Mr. Obama, who has stated that he believes the Constitution needs to change with the times. That document, the original intent of which was to limit national powers, stands in the way of many of the aspects of Obama’s vision of a society with the national government as the epi-center of everyone’s life. Much room is extended for questioning of her views on this aspect to be sure.

There is a video that will undoubtedly be readily available to reveal the Sotomayor “take” on the role of the Court. At Duke University in 2005, Sonia Sotomayor appeared on a panel in which she made the statement that the US Courts of Appeals are “where policy is made”. Realizing she was being recorded, she quickly took pains to try and mitigate her comments’ impact. This is the “legislating from the bench” view that runs contrary to the separation of powers established by the Founders: Congress makes the laws which are carried out by the Executive and the Judiciary arbitrates disputes which arise among imperfect human beings and their institutions. Lots of room for challenge here also.

Finally, I for one certainly have reservations about any judge who is unclear on the justice principle. Sonia Sotomayor has peeked out from under the blindfold of Justice to make decisions based on race. In a case involving the City of New Haven, the results of a test to determine the promotions of firefighters did not yield the “appropriate” number of promotable black firefighters in the process. The tests were determined to have been themselves unbiased. So what did the City do? It promoted no one. A number of firefighters who thought they should have been promoted sought legally to get the promotions they thought they’d earned. Their suit was dismissed and they appealed. The Second Court of Appeals panel which included Sonia Sotomayor, upheld the dismissal and it is now before the Supreme Court. No matter what you may think about the so-called affirmative action as a policy, it is in principle racist. To call it anything else in an attempt to disguise reality is futile. Here too there is much room for contentious questioning of Sotomayor.

In summary, Obama’s pick is probably a kindred spirit, who embraces a certain “empathy” toward those deemed by her to be at some disadvantage in any societal circumstance. Like Obama’s executive approach, Sotomayor’s judicial approach will see decisions over important legal and justice issues tempered by the politics of the moment, and the beneficiaries will be representatives of the currently favored special interest. Thus the Obama vision will move the country a few steps further down the path of devolution into a society of increasing class conflict with the appointment of Supreme Court Justice Sotomayor.

Copyright 2009 Edward Podritske

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