Blind jus­tice? Ask Clarence Thomas

The Washington Times Weekly - - Commentary - Cal Thomas

In in­tro­duc­ing his choice to re­place Jus­tice David H. Souter on the Supreme Court, Pres­i­dent Obama touted Judge So­nia So­tomayor’s bi­og­ra­phy.

He noted her hum­ble be­gin­nings: She grew up in a hous­ing project in the Bronx, was a child of Puerto Ri­can par­ents, had a fa­ther who died when she was 9 and a mother who worked six days a week as a nurse so young So­nia and her brother could go to Catholic school.

If th­ese hum­ble be­gin­nings mat­tered, as they re­late to Judge So­tomayor’s view of the Con­sti­tu­tion, Clarence Thomas should have sailed through his con­fir­ma­tion hear­ings in­stead of be­ing sub­jected to “a high­tech lynch­ing,” as he fa­mously put it. Jus­tice Thomas also came from hum­ble be­gin­nings (as did Pres­i­dent Ge­orge W. Bush’s His­panic At­tor­ney Gen­eral Al­berto Gon­za­les), but bi­og­ra­phy mat­ters only if you’re a lib­eral. If you evolve into a con­ser­va­tive, it is ir­rel­e­vant, at least to the elites.

Mr. Obama says a main cri­te­rion for se­lect­ing some­one for the court is that the per­son be em­pa­thetic to peo­ple and to the con­se­quences of le­gal de­ci­sions.

In a 2002 speech at Berke­ley, Calif., Judge So­tomayor said she though it was ap­pro­pri­ate for judges to con­sider their “ex­pe­ri­ences as women and peo­ple of color” when they make de­ci­sions and added that such things should “af­fect our de­ci­sions.”

That statue above the Supreme Court — the one of a woman wear­ing a blind­fold and bal­anc­ing scales in her hand — is meant to de­pict the law as blind to one’s gen­der, race and per­sonal cir­cum­stances. Mr. Obama wants that blind­fold re- moved and the law tai­lored, like a suit, to fit the in­di­vid­ual. This is the clas­sic lib­eral view of the law, or as Judge So­tomayor has put it, the courts “are where pol­icy is made.”

None of this mat­ters, be­cause Democrats have the votes in the Se­nate to con­firm her. Moderate and even some con­ser­va­tive Repub­li­cans will cower at the prospect of be­ing la­beled racist, sex­ist and anti-His­panic. Plus, it is a one­for-one ex­change, swap­ping the lib­eral Jus­tice Souter for the lib­eral Judge So­tomayor, so not all Repub­li­cans will want to put up a fight. They should, if for no other rea­son than to train for the next nom­i­na­tion, not to men­tion stand­ing on prin­ci­ple.

There are not many per­sonal in­dis­cre­tions that could tor­pedo this nom­i­na­tion. Though tax avoid­ance sank Tom Daschle’s nom­i­na­tion to be health and hu­man ser­vices sec­re­tary, tax prob­lems didn’t stop his suc­ces­sor, Kath­leen Se­be­lius, or Trea­sury Sec­re­tary Ti­mothy F. Gei­th­ner. We seem, too, to have gone be­yond the avoid­ance of nanny taxes that de­railed pre­vi­ous nom­i­na­tions for lesser po­si­tions. So what should the Repub­li­can strat­egy be?

The strat­egy should be played out on at least three fronts. The first front should be Judge So­tomayor’s rul­ings, sev­eral of which have been re­versed by the Supreme Court. Th­ese rul­ings are fair game.

Repub­li­cans should ex­pose the judge’s lib­er­al­ism, as re- vealed in cases such as Ricci v. DeSte­fano, in which white male New Haven fire­fight­ers, de­nied pro­mo­tion af­ter an exam be­cause no blacks qual­i­fied for ad­vance­ment af­ter tak­ing the test, filed a dis­crim­i­na­tion suit when the city of New Haven threw out the exam re­sults and de­cided not to is­sue any pro­mo­tions. The fire­fight­ers’ suit even­tu­ally was dis­missed.

Judge So­tomayor, as part of a three-judge panel hear­ing the case, up­held that dis­missal. Even lib­eral Wash­ing­ton Post colum­nist Richard Co­hen and Judge So­tomayor’s col­league Judge Jose A. Cabranes, a Clin­ton ap­pointee, ex­pressed shock and dis­ap­point­ment over her rul­ing.

The sec­ond front should be a recita­tion of what the Founders had in mind when they wrote the Con­sti­tu­tion and the ben­e­fits that come from con­form­ing peo­ple to that doc­u­ment. Too many of our schools teach too lit­tle his­tory, or fal­sify it. A his­tory les­son would be good for the coun­try. If the Con­sti­tu­tion is treated as lib­er­als treat the Bi­ble, it loses its mean­ing, pur­pose and power.

The third front should fo­cus on the hypocrisy of the left, in­clud­ing Pres­i­dent Obama. There is a gold mine of quotes from lib­er­als, such as for­mer Demo­cratic Na­tional Com­mit­tee Chair­man Howard Dean, ex­co­ri­at­ing con­ser­va­tive ju­di­cial nom­i­nees. Repub­li­cans should use the quotes against those who op­posed con­serva- tive candidates for the Supreme Court.

Dur­ing his brief time in the Se­nate, Mr. Obama voted against John G. Roberts Jr. and Sa­muel A. Al­ito Jr. He ac­knowl­edged they were well-qual­i­fied for the bench but op­posed their nom­i­na­tions be­cause he thought they might be con­ser­va­tives.

If Mr. Obama could vote that way as a se­na­tor, why shouldn’t Repub­li­cans do unto him what he did unto a Repub­li­can pres­i­dent and vote against Judge So­tomayor for her lib­er­al­ism? At a min­i­mum, her state­ments and record should get a thor­ough go­ing over.

Cal Thomas is a na­tion­ally syndicated colum­nist.

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