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."

What's most disturbing about the picture below in not just that Barack Obama and Sonia Sotomayor appear to have fallen deeply in love, but that they are both advocates of a kind of "racial identity" politics that most of us thought our country had outgrown.
We learned today that Sonia Sotomayor, who cheerfully dabbles in racism and sexism, has been a leader in La Raza ("The Race"), an Hispanic group that promotes racial separatism and extreme forms of ethnic pride. If Sotomayor, with her outrageous statements and mean-spirited attitudes, were a white man -- or even a white woman -- she would have no chance of being confirmed.

Yes, Lady Justice wears a blindfold. Yes, judges are supposed to do everything in their power to be fair and impartial. But tell those truisms to Obama, who favors empathy for certain groups but not for others, and to Sotomayor, who believes "wise Latina" judges are inherently better than wise white male judges.

Question for Obama and his Latina nominee: when, if ever, has she demonstrated wisdom? What would her "wisdom" tell her about a white judge who had joined a group called "The Race" (in his case, of course, the WHITE race)?

Some of the best writing about Sotomayor's severe deficiencies as a judge -- and as a human being -- came from Stuart Taylor, writing in The National Journal before Obama named his nominee. He says:

"It follows that the Supreme Court might well be a wiser body -- other things being equal -- if the next justice is a Hispanic woman of outstanding judgment and capability. But do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality?

"Compare Sotomayor's celebration of 'how wonderful and magical it is to have a Latina soul' and reflections 'on being a Latina voice on the bench' with Judge Learned Hand's eulogy for Justice Benjamin Cardozo in 1938."

"'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.'

Taylor says, "Some see such talk as tiresome dead-white-male stuff, from a time when almost all judges were white males -- although, in Cardozo's case, descended from Portuguese Jews. I see it as the essence of what judges should strive to be."