Sotomayor

Most of the debate around the nomination of Sonia Sotomayor is bound to revolve around whether she reached this point in spite of or because of being a hispanic woman.  She is probably qualified, but by what criteria is she the most qualified, if not race and gender?  It's a matter of record that her demographics influenced Obama's selection, but Shakesville, true to form, is quick to stuff the strawman that only sexists have a problem with this state of affairs.

It's unclear which side of the argument McEwan is trying to help by equating Sotomayor's much-vaunted "empathy" with affinity for minority groups.  Ideally, attention could be redirected from race and gender to Sotomayor's jurisprudential qualifications.  Unfortunately, her qualifications and demographics are rendered inseperable by her patent racial bias.  The following quotation, offered by Sotomayor in 2001, should be familiar by now to anyone reaching a source as obscure as myself,

"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."

The New York Times attempts to put this bombshell of a statement into a sympathetic context by dissembling over the impossibility of a truly objective position.  I'm sorry, but it doesn't fly.  If she had constrained herself to the admission that her racial background influenced her judicial decision-making, that could have been easily excused on epistemelogical grounds, but her words are unmistakable: "a wise Latina woman... [would] reach a better conclusion than a white male..."  Not a different decision- a better one.

Lest this be dismissed as an offhand slip of language such as to which everyone is subject from time to time, let's move on to Sotomayor's qualifications-proper: her legal decisions in the 2nd circuit of appeals.  For the most part the body of her work consists of competent responses to somewhat technical legal challenges.  However, two issues seem to push her buttons as they do for the public at large: race and guns.  When confronted with a potential constitutional challenge to affirmative action in Ricci v. DeStefano, she rendered an anomalous per curiam decision adopting the reasoning of the district court without reference to constitutional issues.  To argue against a constitutional challenge is one thing- to ignore it, quite another.  Ironically, this makes questions about how her race has influenced her own career advancement highly apropos to her integrity as a jurist.  

It's hardly the only evidence that Sotomayor makes decisions with more regard for ideology than the merits of the case at hand.  Much has been made of her confrontational oral questioning, which while unimportant in terms of its tone, is nonetheless revealing in that its content is aimed not at eliciting truth but with browbeating the counsel in a manner evocative of Judge Judy with just how wrong they are.  A pattern emerges of deciding cases before hearing them,

"She held a telephone conference call with the parties, decided witnesses weren't necessary and scheduled oral arguments. After listening to lawyers for 90 minutes, she took 15 minutes to deliberate, then spent 45 minutes reading her decision, making clear the bulk of it had been prepared ahead of time."

Ultimately, whether or not Sotomayor is confirmed is of limited consequence.  Her probable positions are not remarkably divergent from Souter, who she would replace.  Furthermore, if her jurisprudence is uninsightful as purported by some associated with the 2nd circuit, she's unlikely to influence other supreme justices to her way of thinking.  Or, as Rod Dreher puts it, "Given that we were certain to get a liberal justice out of Obama, ... one has to take comfort in knowing that Obama made a quota pick too, and did not choose a liberal justice who can match intellects with Roberts and Scalia."

Respect for the constitution was Obama's most influential plank to me, yet Laurence H. Tribe, an advisor in Sotomayor's selection process tells us, "the White House [concluded] that her background and her concern with the consequences of court rulings would be a 'healthy antidote' to more formalist legal theories."  Is strict constitutional construction now a poison which requires an antidote?  "Concern for consequences" connotes subordinating both the letter and spirit of the law as legislated.  

This is undisguised judicial activism, as exemplified by Sotomayor's opinion in Maloney v. Cuomo that the second amendment limits only the federal, and not state, governments.  Regardless of your position on firearms, this is a threat to constitutional rights.  Sotomayor relies for this opinion on an 1866 precedent.  Whither the 14th amendment?  It doesn't apply to the 2nd amendment as it would to the 1st, renders that per curiam opinion, as the right to bear arms is not a "fundamental" right.  It should come as quite astounding to the authors of the bill of rights that some of the rights they enumerated were not fundamental.  Which right will be deemed non-fundamental after the next president packs the bench with his or her favored idealogues?

The real reason Sotomayor is important is that her nomination is further proof that the hope and change I voted for has been pre-empted by run-of-the-mill partisanship.  This is hearsay, granted, but we have it here on the word of an individual close to the selection process that Obama selected Sotomayor on the basis of her judicial activism.  That makes Obama, not Sotomayor, the key figure of this public debate.