Source: http://www.ibdeditorials.com/IBDArticles.aspx?id=328229941213971
By INVESTOR'S BUSINESS DAILY | Posted Tuesday, May 26, 2009 4:20 PM PT
Supreme Court: The first Latina Supreme Court pick is hailed as a political home run, but Judge Sonia Sotomayor is vulnerable. Americans simply don't want justices making law.
Read More: Judges & Courts
What point is there in staging a big fight against the first high court nominee of Hispanic extraction (discounting Justice Benjamin Cardozo's Portuguese blood)?
That is the question pundits are asking in the wake of President Obama's court choice of South Bronx native Sonia Sotomayor.
Add to her ethnicity Sotomayor's rise from inner-city poverty after her father's death during her childhood, the White House's shrewd highlighting of her education at Catholic schools, plus her lifelong struggle against diabetes and it's hard not to find the political math coming out in her favor.
But Hispanic ethnicity didn't stop Senate Democrats, then in the minority, from spending 28 months successfully blocking Honduran-born Miguel Estrada's 2001 nomination to the U.S. Court of Appeals for the D.C. Circuit by President Bush.
Estrada's life story was inspiring too. Knowing little English, he immigrated to America at 17 to join his mother after his parents' divorce. A few years later, he was graduating with honors from both Columbia and Harvard Law.
A November 2001 internal memo from the staff of current Senate Majority Whip Richard Durbin, D-Ill., explained that Estrada was "dangerous" owing to his "minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment."
Consider the blatantly racist analysis — "he is Latino." In other words, conservative plus nonwhite equals "dangerous." It was exactly that kind of thinking that led Senate Democrats to turn the Clarence Thomas Supreme Court nomination hearings into an X-rated circus in 1991.
By contrast, a spirited effort against Judge Sotomayor would be in spite of her being Hispanic, not because of it, as was the case with the Democrats' assault on Estrada — the first-ever filibuster of a Court of Appeals nominee.
The National Journal's Stuart Taylor hit the nail on the head over the weekend in an article asking what the reaction would have been had then-Judge Samuel Alito been found to have said the reverse of Sotomayor's claim of Latina judgmental superiority: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life."
Obviously, he would have been condemned as a white supremacist.
Yet speaking at Berkeley's Law School in 2001, Sotomayor asserted that "I would hope that a wise Latina woman with the richness of her experiences would \[as judge\] more often than not reach a better conclusion than a white male who hasn't lived that life."
Moreover, Judge Sotomayor is clearly a liberal judicial activist. Speaking to Duke Law School in 2005, she contended that "the Court of Appeals is where policy is made."
She then added jovially that "I know this is on tape and I should never say that because 'we don't make law,' " as she made quotation marks with her hands. "I'm not promoting it and I'm not advocating it. You know . . . ," she added with a grin as the audience laughed.
She confirmed that activism last year in ruling against New Haven firemen victimized by reverse discrimination. Sotomayor was accused by a fellow 2nd District judge — Clinton appointee Jose Cabranes — of issuing a one-paragraph "opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal" plus "no reference whatsoever to the constitutional claims at the core of this case."
The Supreme Court is widely expected to reverse her weak decision next month.
Indeed, Sonia Sotomayor's supremely subjective ethos epitomizes the "empathy" President Obama says he wants a justice to espouse.
She could easily end up being the single most liberal justice ever to have sat on the nation's top court — forever seeking opportunities to apply "the richness of her experiences" to "make law," rather than judge.
Lawmakers are not supposed to get lifetime appointments in America; only judges and justices are, because it is presumed they are guided solely by legitimately enacted law — not their biography, ethnic background or raw politics.
That bedrock constitutional principle should guide the fight to stop what may be the most politicized Supreme Court nomination in history.
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