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."

Obama: Constitution ISN'T "Living Document"

God must have loved Hillary Clinton Supporters, because he made so many of them. Today (Sunday) I picked an argument with one HRC backer -- this time about the false notion that the U.S. Constitution is a "living document." Supposed constitutional law "expert" Barack Obama believes it is. He's wrong, as he is about so many things. (Picture above is Obama consulting one of his key advisers on constitutional law.)

"Some people say the Constitution is a 'living document.' In fact, the Constitution is a a 'dead document." (Justice Antonin Scalia)

What Scalia meant by that statement (made on "60 Minutes") is that the Constitution is a written document, and the words in it mean what they appear to. What that means also is that Barb C., Steve Maloney, and Antonin Scalia can read the document as written and UNDERSTAND (and frankly, eventually agree on) what it means. We can consult historical dictionaries and the like to make sure certain words didn't have a different meaning in the 18th century than they do now. The problem with taking a liberal view of the Constitution is that it undermines the purpose of having such a document. If it means something different every morning when we wake up, then heaven help us. Obama takes a liberal view, where the certifiably dead document is eternally in flux."

Obama studied constitutional law at Harvard. Is he really an expert on the subject? In his adult lifetime, Obama has never written a single article on constitutional law. He hasn't even submitted a footnote. So far as we know, he's never examined or edited a piece submitted for a top law review. In fact, if he's ever made a coherent statement on the subject, I must have missed it.

That's not an impressive performance for someone who served as the first African-American "president" (not "editor" as you may have heard) of the Harvard Law Review. Would Obama, a living monument to affirmative-action, have been chosen president of that august body if he hadn't been (partly) of African-American descent? I leave that to your imagination. He proves that even a classic under-achiever can get ahead in America.

Sarah Palin: The Abortion Issue

Picture of Trig Palin as a newborn . . .


I count myself as strongly pro-life, but I've argued for a pragmatic approach to the abortion issue. I know, you know, and Sarah knows there is nothing like a majority in the Congress -- or among the states (three-fourths of them needed) to pass a constitutional amendment outlawing abortion. The last time a Human Life Amendment (see Wikipedia) was brought up in the Senate was 1983, and it failed to get even a majority, let alone the two-thirds vote it needed.

Justice Antonin Scalia, who is personally opposed to abortion, has said, "The Constitution does not permit abortion. The Constitution does not prohibit abortion."

The critical point here is not whether one "agrees" with Scalia, but rather that what he says is true, which it is. (The implication in Scalia's statement is that the issue should go back to the states, which probably isn't going to happen. Things will stay as they are.)

Scalia is sometimes sniffed at by leftists as an "originalist." In fact, an originalist is someone who believes the Constitution means what it says. It doesn't mean what the latest Gallup Polls indicate a majority wishes it said.

Sarah's core group is anti-abortion. However, as her number of supporters grows, it will become more and more diverse.

People will also come to understand that Gov. Palin embraces a combination of conservative, libertarian, and populist principles. Her motto has been: "Serve the people." Her motto is NOT "Serve the people who believe exactly as I do."

She has said she personally opposes abortion, but that she has no interest in "criminalizing" it. By the way, neither do I. Neither I guess would Scalia.

One of the chapters in my book on Sarah Palin will deal with feminists who support her, including Elaine Lafferty, Shelley Mandell (the head of the Los Angeles chapter of NOW who endorsed Sarah), and Camille Paglia. That chapter will deal with Sarah's obligation as a potential President to those women and others like them. The key is a question of respect -- respect for those whose views differ from Palin's on one or more issues.

I've had discussions with some strong pro-lifers , including one woman who heads a pro-life PAC. She understands very well what I'm saying about abortion as an issue, that it's one of conscience and education, not laws, and she generally agrees. In time, I think most of the staunch pro-lifers on in Sarah's camp will also agree.

No one sound of mind wants to paint Sarah into a corner that would lead to her inevitable defeat. We can't ask her to run in an imaginary America; she has to run in the nation as it is. Sarah is a person who leads by example, not by barking out orders and using strong-arm tactics.