Posted by
charlestonjames on Wednesday, May 27, 2009 1:26:06 PM
It seems there are really only two qualifications required to be a Supreme Court justice for the current Democrat administration: a left-leaning agenda and being sufficiently minority. That's the impression given by some recent news stories on the SCOTUS nomination of Sonia Sotomayor.
President Obama has made a big deal out of Sotomayor's genuinely inspiring life story. Granted, he has the difficult challenge of getting a Supreme Court nominee confirmed by a sympathetic Congress with the distant microscope of a sympathetic press, both of which are quite taken with the gender and race aspects of this particular nomination. Okay, so that's not such a challenge after all. But getting this nomination approved by Congress before anything seriously inconvenient is divulged will be a challenge.
There's nothing wrong with the president nominating an idealogue who supports his own bias and world view, that's what any president does. However, Sotomayor is being treated not as an ideologue, but rather as an idealist. And there's the rub; an entirely different treatment by both Congress and the news media (the very people who decry partisanship, and laud bi-partisanship) from other recent federal court nominees. You may not remember how President Bush's judicial nominees were treated by Congressional and journalistic Democrats, so here's a brief reminder:
John Roberts and Samuel Alito in particular were ridiculed and excoriated by Congressional Democrats and main stream journalists, with plenty of slander and misrepresentation to boot. And what sort of criticisms do journalists have for Sotomayor? Charlie Savage makes a fair effort to explain potential problems one could have with her in his NYT piece
A Judge’s View of Judging Is on the Record. In this piece several statements of Sotomayor are presented. Since conservatives are commonly subjected to an "I know bigotry when I see it" decoder-ring attitude from leftists it seems only fair to acknowledge, as Savage does here, that Sotomayor's statements seem to satisfy Barack Obama's imperative of a judge's "empathy" for ruling from the bench.
But it appears there is a concerted effort, at least in the general news media and left leaning political circles, to avoid taking a closer look at Sotomayor's record. For example, the May 27, 2009 AP story
Push to confirm first Hispanic to Supreme Court makes no effort to detail any potential difficulty with the nomination other than a token quote of unspecified "serious problems" from a Republican Senator. Likewise, NPR's Nita Totenberg spends the vast majority of two news stories on the magnificence of the entire situation, with numerous statements from Sotomayor supporters. There is only one statement included in each story of any possible criticism. (As a side note, suddenly the fact that no one has read all of Sotomayor's legal decisions is presented as pertinent, where as this same lack of preparedness was widely treated as irrelevant regarding
the largest spending bill in American history earlier this year). Totenberg tries to portray Sotomayor as a moderate while informing us Republicans will try to portray her as extremist or activist, with the suggestion it is only a few fringe right wingers who would ever think such a thing.
Totenberg and President Obama do actually address one specific legal decision of Sotomayor. Others have recently addressed that case in other places as, so far, the only specific instance of her vast and riveting experience the American people seem to be aware of:
The lack of any substantial information about this nominee should be concerning. No where in the left wing media, and certainly no where in Congress, are we getting real information other than the heart warming story of Sotomayor's difficult life and her inspiring ascendence to a high federal court.
The New Republic's Jeffrey Rosen did some work of truly investigating concerns over Sotomayor. On May 4, 2009 Rosen's
The Case Against Sotomayor (
a title Rosen regrets) brings us some valid points about temperament and such, though from a sympathetic point of view. There are legitimate questions as to her ability to work well with others and her intellectual competence for the job on the SCOTUS.
Regarding the ostensible unwillingness to challenge President Obama's nomination Alan Dershowitz explains quite well that Congress is the body of representation, and that "diversity" (liberal code for "you are a bigot if you disagree with me") should not be a deciding factor when nominating someone for a seat on the nation's highest court:
Diversity on the High Court. Randall Kennedy reminds us a compelling personal story was irrelevant to leftists when Clarance Thomas or Sarah Palin were the political hot topics of the day:
Sotomayor’s Biography Should Be Irrelevant.
President Obama and the Democratic Party seem to be operating on the idea that Sotomayor's race, gender, and years of judicial experience are the only relevant factors here. There is no apparent interest in the quality of that experience, or worse - a left leaning agenda allegedly behind that experience is treated as validation. The fact that the Supreme Court has had to overturn as much as 60% of Sotomayor's decisions which reached them is entirely ignored. The biggest concern conservatives have about Sotomayor is her seeming willingness to disregard the Constitution altogether if she feels it interferes with her sentiments. Evidently alternative news media will have to bring this information to light.
Two such cases can be found already. Before Obama made his SCOTUS pick there were a few contenders. Ilya Shapiro wrote about that May first, for the Cato Institute. In
Who Will Replace Justice Souter? Shaprio brings up "
Ricci v. DeStefano ... an appeal of a
bizarre opinion Sotomayor joined that denied the claims of firefighters
who had been passed over for promotion because of their race." Richard Epstein with Forbes.com wrote on May 26 in
The Sotomayor Nomination about the infamous Kelo v. New London case. Epstein says this:
Here is one straw in the wind that does not bode well for a Sotomayor
appointment. Justice Stevens of the current court came in for a fair
share of criticism (all justified in my view) for his expansive reading
in Kelo v. City of New London
(2005) of the "public use language." Of course, the takings clause of
the Fifth Amendment is as complex as it is short: "Nor shall private
property be taken for public use, without just compensation." But he
was surely done one better in the Summary Order in Didden v. Village of Port Chester
issued by the Second Circuit in 2006. Judge Sotomayor was on the panel
that issued the unsigned opinion--one that makes Justice Stevens look
like a paradigmatic defender of strong property rights.
In the mean time, let's see if Sotomayor is treated like this during her confirmation hearings.