Sotomayor practices an extremely race-conscious jurisprudence. And there's some debate today over allegations that she's in fact racist. Newt Gingrich has even called on the nominee to withdraw her name from consideration.
George Will pins down a key issue here, with respect to the politics of judicial confirmation. Prior to the 1980s - and especially before Ronald Reagan's appointment of Robert Bork to the High Court - nominees were rarely grilled over questions of ideology and judicial philosophy. The major criteria had been competence and ethics. And as Bork was an unimpeachable nominee in that respect, the Democratic-left launched the most ideologically unprincipled attack on a Supreme Court appointment in history. Here's Will's key line:
The 1987 fight over President Ronald Reagan's nomination of Robert Bork interred the tradition that the Senate, in evaluating judicial nominees, would not delve deeply into the nominee's jurisprudential thinking. Bork's defeat was unjust, but the new approach to confirmations was overdue, given the court's increasingly central role in American governance.Yes, the attack on Bork was "unjust," but that's the way it goes now, thanks to the smear-merchants of the Democratic Party. As Will indicates, Sotomayor is a hardline affirmative action activist (the 2nd Circuit's New Haven reverse discrimination case is currently on the docket at the John Roberts Supreme Court). As one of the New Haven judges, Sotomayer has shown a willingness to set aside merit-based criteria for bureaucratic hiring and promotion. She's frankly a quota queen in the classic sense of the term.
But it's not just her record on the appellate bench that's devastating. Her own statements are a virtual treasure trove for Republican Senators on the Judiciary Committee. The best piece I've seen on this is Alexander Bolton's, "Critics focus on Sotomayor speech in La Raza journal." This passage is key:
Sotomayor delivered the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California at Berkeley School of Law. The Berkeley La Raza Law Journal published the lecture the following year.Read Bolton's piece in full. Sotomayor is also quoted as saying, "Personal experiences affect the facts that judges choose to see ... My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."
Conservative critics have latched onto the speech as evidence that Sotomayor is an “activist judge,” who will rule on the basis of her personal beliefs instead of facts and law ....
In her 2001 speech, after citing legal thinkers who called on jurists to transcend personal biases, Sotomayor questioned whether judges could in fact escape such prejudices.
“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.
“Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
Some Republican critics say these statements raise concerns about whether Sotomayor, who was raised under modest circumstances in the Bronx, would serve as a neutral arbiter in a case pitting a wealthy white male against a less wealthy man or woman of color.
Confirming Sonia Sotomayor at the Supreme Court will provide the Democratic-left a smashing blow against color-blind justice and equality under the law. Racial identity politics will emerge as the guiding focus of Obama-era jurisprudence, and future retirements at the Court will give this administration an opportunity to seal a long-term reverse discrimination program in the American judicial system.
Yet, Sotomayor will not in fact be "borked." There's nothing scurrilous in lifting up the carpet on this race-monger's ideological program. Unlike in Robert Bork's time, ideological opposition to a nomineed is fair game. The Democrats brought it on. And now the American people deserve a full accounting of this woman's radical views.
Sotomayor has asked if a better judicial ruling might be found if a person of color makes that determination rather than "a white male who hasn’t lived that life."
If a conservative judge had made an equivalent statement a GOP president's nomination would have already been withdrawn.
Sotomayor is a poor choice for the nation's highest court. She deserves a level of ideological scrutiny as close as Judge Bork received in 1987. The difference now is that Sotomayor won't in fact be "borked."