A judge too far

The Washington Times Weekly - - Editorials -

With his nom­i­na­tion of Judge So­nia So­tomayor for the U.S. Supreme Court, Pres­i­dent Obama has aban­doned all pre­tense of be­ing a post-par­ti­san pres­i­dent. While he may like to think of him­self as a thought­ful moderate soar­ing above the is­sues that di­vide Amer­ica, his ac­tions re­veal what hides un­der that hope­ful lin­ing.

Pres­i­dents usu­ally nom­i­nate judges that es­pouse their phi­los­o­phy. So what does this nom­i­na­tion tell us about Mr. Obama’s true colors?

Even the lib­eral es­tab­lish­ment wor­ries that Judge So­tomayor tilts too far to the left. New Repub­lic es­say­ist Jef­frey Rosen re­ports that fel­low lib­er­als who have watched or worked with her closely “ex­pressed ques­tions about her tem­per­a­ment, her ju­di­cial crafts­man­ship, and [. . . they have said] she is ‘not that smart and kind of a bully on the bench.’ ”

A sus­pi­ciously high num­ber of her de­ci­sions have been over­ruled by higher courts. Wendy Long of the Ju­di­cial Con­fir­ma­tion Net­work said that record shows “she is far more of a lib­eral ac­tivist than even the cur­rent lib­eral ac­tivist Supreme Court.”

There will be much to say in days to come about Judge So­tomayor’s man­i­fest lack of ap­pro­pri­ate ju­di­cial re- straint and about other prob­lems in her record. For now, though, three red flags beg for at­ten­tion.

“Where pol­icy is made”: Speak­ing at Duke Uni­ver­sity Law School in 2005, Judge So­tomayor said the “Court of Ap­peals is where pol­icy is made.” On its face, the as­ser­tion runs counter to more than 200 years of Amer­i­can le­gal tra­di­tion hold­ing that courts are merely meant to in­ter­pret ex­ist­ing law, not ac­tively make pol­icy choices.

Im­me­di­ately re­al­iz­ing she was on thin ice, the judge con­tin­ued: “[. . .] and I know this is on tape and I should never say that, be­cause we don’t ‘make’ law.” To much laugh­ter, and with fa­cial and hand ges­tures to in­di­cate that her next line was to be taken with hu­mor as a use­ful fic­tion, she added: “I’m not pro­mot­ing it and I’m not ad­vo­cat­ing it.”

But ju­di­cial ac­tivism is no joke. It un­der­mines the Con­sti­tu­tion and sub­sti­tutes ju­di­cial whim for demo­cratic de­ci­sion-mak­ing. Un­elected judges, an­swer­able to no one but them­selves and serv­ing for life, can all too eas­ily be­come danger­ous oli­garchs.

White judges know less: Judge So­tomayor seems to think that in­her­ent racial and sex­ual dif­fer­ences are not sim­ply quirks of ge­net­ics, but make some bet­ter than oth­ers. Con­sider her 2002 speech at the Uni­ver­sity of Cal­i­for­nia-Berke­ley School of Law.

“I would hope that a wise Latina woman with the rich­ness of her ex­pe­ri­ences would more of­ten than not reach a bet­ter con­clu­sion than a white male who hasn’t lived that life,” she said. “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.”

She also ac­cepted as po­ten­tially valid the idea that the “dif­fer­ent per­spec­tives” of “men and women of color” are due to “ba­sic dif­fer­ences in logic in rea­son­ing” due to “in­her­ent phys­i­o­log­i­cal or cul­tural dif­fer­ences.” If a white male had said th­ese openly racial­ist words in a pre­pared speech, his chances of reach­ing the U.S. Supreme Court would be gone in an in­stant. In­stead, it seems that th­ese out­landish re­marks are what qual­i­fied Judge So­tomayor in Mr. Obama’s eyes.

Re­ward­ing dis­crim­i­na­tion: Judge So­tomayor seems to fa­vor racial dis­crim­i­na­tion. Con­sider the case of Ricci v. DeSte­fano. In that con­tro­ver­sial case, 19 white fire­men were de­nied pro­mo­tion be­cause no blacks scored high enough on a race-neu­tral test to also be pro­moted. Judge So­tomayor ruled against the white fire­fight­ers.

If Mr. Obama wanted a judge with the right “em­pa­thy,” he struck out with Judge So­tomayor. One of the white fire­fight­ers de­nied pro­mo­tion, Frank Ricci, is dyslexic. In or­der to ace the pro­mo­tion exam, he quit a sec­ond job, spent $1,000 for in­struc­tion ma­te­ri­als, and spent many hours read­ing those books into an au­dio tape to help him study. For his ex­traor­di­nary ef­forts, he fin­ished sixth out of 77 ap­pli­cants for pro­mo­tion — but then was de­nied, sim­ply be­cause he is white.

Sec­ond Cir­cuit Court of Ap­peals Judge Jose Cabranes, ap­pointed by a Demo­cratic pres­i­dent, com­plained that the rul­ing writ­ten by Judge So­tomayor and two other judges “con­tains no ref­er­ence what­so­ever to the con­sti­tu­tional claims at the core of this case.”

The Supreme Court is ex­pected to rule on Ricci v. DeSte­fano be­fore the Se­nate votes on Judge So­tomayor’s nom­i­na­tion. It would be an ex­traor­di­nary re­buke were a cur­rent nom­i­nee to be over­ruled on such a con­tro­ver­sial case by the very jus­tices she is slated to join.

Judge So­tomayor seems to be the most rad­i­cal per­son ever nom­i­nated for the high court. To con­tinue to com­mand pub­lic re­spect, the Se­nate will have to ask her some hard ques­tions. The sim­plest one to ask will be the hard­est one for her to an­swer: Given her state­ments against whites and males, can she be fair to all Amer­i­cans?

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