Friday, May 29, 2009

Sotomayor: The Elevation of Mediocrity

Sonia Sotomayor at age 21 as a student at Princeton . . .

On the crucial matter of abortion, Sonia Sotomayor's views are not known. Obama claims he did not ask her about her views on the issue. Justice Atonin Scalia, the father of a Catholic priest as one of his and his wife's 11 children, is personally opposed to abortion.

But here's what he said on "60 Minutes" about it: "The Constitution does not prohibit abortion. The Constitution does not permit abortion." I found that statement fascinating but very much in keeping with Scalia's view that where the Constitution does not mention a particular action, then it probably is a state matter. I don't insist that anyone agree with Scalia, although his belief that "the Constitution means what it says" is a hard one to challenge.

Scalia also repeated a statement whose original author is hard to determine: "Not everything that is Constitutional is good, and not everything that is 'good' is Constitutional."

Some truly great justices like Oliver Wendell Holmes, Learned Hand, William Rehnquist, and Benjamin Cardozo looked at being a Supreme Court Justice as something of a gut check: that is, they looked at impartiality as difficult but at the same time a sign of judicial maturity and character. The question for them was not whether they "liked" a particular litigant, but whether he or she was right in terms of constitutional and statutory law. Their knowledge that we have a human tedency to be unfair led them to guard against that tendency.

Some of the most serious charges against Judge Sotomayor are, in the words of those who have practiced in front of her, that "she doesn't understand the role of lawyers in an adversarial system." I mean, my goodness: the woman has been a lawyer for 30 years! And she doesn't understand what it is attorneys are supposed to do?

When Jonathan Turley, a liberal, told Chris Mathews and David Shuster that Ms. Sotomayor was an intellectual lightweight, he (Turley) opened himself up to Daily Kos types, some of whom said he must a "racist and a sexist." Turley is a liberal, but he neither racist nor sexist.

Sotomayor has zero reputation as a consensus builder. There is evidence that her colleague Judge Ralph Winter, a "conservative" and a gentleman, has "protected" her opinions on a couple of occasions by inserting clarifying footnotes in some of her muddier legal opinions.

Here are a few lines from Judge Learned Hand's eulogy to Supreme Court Justice Benjamin Cardozo:

"The wise man is the detached man," Hand wrote. "Our convictions, our outlook, the whole makeup of our thinking, which we cannot help bringing to the decision of every question, is the creature of our past; and into our past have been woven all sorts of frustrated ambitions with their envies, and of hopes of preferment with their corruptions, which, long since forgotten, determine our conclusions. A wise man is one exempt from the handicap of such a past; he is a runner stripped for the race; he can weigh the conflicting factors of his problem without always finding himself in one scale or the other."

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