Saturday, May 30, 2009

Supreme Court Justice Sonia Sotomayor Has a Nice Ring to It

Some may be tone deaf, but Judge Sotomayor will be confirmed, probably by a 64-34 vote. The Republicans have as much of a chance of defeating the first Hispanic nominee to the Court, a Latina, as the Democrats had of defeating President Reagan’s nomination of Sandra Day O’Connor, the first woman on the Court.

Some whisper that the Judge lacks sufficient intellectual ability and sharpness.

Give me a break! I don’t care what her major was at Princeton, or whatever courses she may or may not have taken. She graduated second in her class, summa cum laude from Princeton. That has to be worth something in the way of intelligence.

Then she graduated from Yale Law School – one of only 160 a year from the nation’s top law school (sorry Harvard).

Ah, but she succeeded through hard work (she is a workaholic) rather than intellectual ability. Have we forgotten that success in America is a function of hard work?

President George W. Bush had a Bachelor’s from Yale and MBA from Harvard. He was smart enough. President Carter was an expert in nuclear engineering, but he wasn’t smart. Chief Justice Earl Warren and Justice Hugo Black graduated from public law schools, so they probably wouldn’t be considered smart enough by some.

She’s smart enough, as is her fellow Yale Law School alum, Justice Clarence Thomas.

Affirmative action will not be an issue in the confirmation hearings as to her personal success.

It may well, and should arise, with the New Haven firefighters, the decision in which is expected in a few weeks. (It will be interesting to see how the current Court now handles the decision – might they now affirm to avoid embarrassing her; it would do no good to roll it over to next term because she would recuse herself).

So what if three of her opinions have been overruled by the Supreme Court. Chief Justice Roberts did not win all the cases he argued before the Court.

If either Antonin Scalia or Samuel Alito had said “I would hope that a wise Italian male with the richness of his experiences would more often than not reach a better conclusion than a Hispanic female who hasn’t lived that life,” he would not be sitting on the Court today.

So what? It’s a different President and Senate and an accommodating media.

“Justice is Blind,” but every judge is the result of his or her background. Who we were helps define who we are. Our background forms part of the political calculus of a judicial appointment.

I remember an anecdote about President Johnson and Justice Thurgood Marshall. While it's not politically correct by today's mores, LBJ never was. Some of his advisors attempted to talk LBJ out of appointing Marshall because he was "too black." LBJ responded that if he was going to appoint a black to the Court, it would be a black.

Judge Sotomayor is clearly Hispanic.

The record of a nominee is parched, dissected, and flyspecked under an electron microscope.

So what’s her record?

She favors affirmative action, campaign finance reform, and gun control. She’s tough on criminal defendants, somewhat conservative on business issues, and an enigma on abortion and national security issues. She didn’t vote in two recent New York general elections.

The NRA doesn’t like one of her opinions, but they can’t stop her confirmation.

The Far Left is nervous because her record is silent on abortion; they are afraid that a Souter might replace Souter. They will support her in the end, as she follows the Kabuki path of Justices Thomas, Roberts, and Alito in navigating the abortion questions at the confirmation hearings.

So what if she is on YouTube saying the court of appeals judges make policy. Of course they do – that’s one of the basic principles even I learned at my not so elite, but excellent, JD law school. District court judges apply the law, and appellate judges decide the law. Since the cases often involve vexing policy issues, the Supreme Court is always free to reverse appellate judges, as the Court often does with the Ninth Circuit opinions.

I don’t want a Justice of “empathy.” I want a Justice who follows the law and doesn’t judicially legislate.

I don’t want a Justice who pursues amorphous concepts of “justice,” but one who follows the law.

However, right now the “law” depends mostly upon the views of one man, Justice Anthony Kennedy, who is the swing vote on the 5:4 decisions. That hardly results in the application of the “law,” but more of a personal perspective. He often partakes of internationalism in interpreting the Constitution.

I don’t need a Justice with a compelling life story. All nine Justices have such stories, as do all of us in our lives.

Frank Ricci, the New Haven firefighter, also has an equally compelling personal story. He is dyslexic, quit a second job, and spent $1,000 on readers to read aloud audiobooks to help him pass the promotion exam. No African American firefighter scored high enough for promotion on the Sergeants or Lieutenant’s exams, so the New Haven Fire Civil Service Commission tossed the tests. Ricci scored 6th on the Lieutenant’s exam. A judicial panel, including Judge Sotomayor, summarily affirmed the action in an unpublished opinion.

Policy is in Judge Sotomayor’s Yale DNA. Yale has pursued for decades its mission of educating the future leaders and policy makers of America. Presidents Ford and Clinton have Yale Law School degrees. So do Secretary of State Hillary Clinton, Pat Robertson, and John Bolton.

Both President Bush’s are Yalis, as are Senators John Kerry, Joe Lieberman, Arlen Specter, as well as Governors Howard Dean, George Pataki, and Jerry Brown.

Ever since the torpedoing of Judge Bork’s confirmation, the Supreme Court battles often become “down and dirty” political, partisan crusades of the lowest common denominator. Actually the process began earlier with the failed nominations of Judges G. Harold Carswell and Clement Haynsworth in the Nixon Administration. Both were tarred with charges of racism.

Everytime a Justice, or appointee, is trashed, the moral authority of the Supreme Court is tarnished. Once the Court is widely perceived to be a partisan branch of government, its opinions will lack moral suasion.

The politics of personal destruction are inappropriate in the judicial confirmation process. Let the debate be on issues. If the Republicans wish to bring Frank Ricci before the Senate and discuss affirmative action, they should do so, but in a respectful tone. They will not win the confirmation vote, but can pervail in the larger public battle over affirmative action in the Court of Public Opinion, while respecting the dignity of the Supreme Court.

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