Wednesday, May 27, 2009

Reverse Thinking

Immediately after President Barack Obama announced Judge Sonia Sotomayer as his nominee to the Supreme Court, conservatives unleashed a torrent of snarky criticism led by their pit bull and spiritual guide, Rush Limbaugh. So shrill were the criticisms that it is no wonder that the party of "NO" is dwindling into the party of NO ONE!

With less than one quarter of the country identifying themselves as Republicans, the party is struggling to find its way. Today few Americans have empathy (pardon the expression conservatives) for what's left of the GOP, and no wonder. The notion that Judge Sotomayer practices "reverse discrimination" is absurd and reflects the Republican tendency to use scare tactics.

A key element of the attacks is Judge Sotomayer's 2001 speech made at the University of California, Berkeley, School of Law entitled, "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." At one point Judge Sotomayer said, "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 just hasn't lived that life."

Conservatives have seized on this statement as evidence that she is racist. They do not understand that this is an aspirational statement, not a condemnation of white males. It is also an incomplete representation of what she said. The judge went on to say, "I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

Another criticism centers on Judge Sotomayor's role in a dispute between the city of New Haven and a group of white and Hispanic firefighters. Here she was on a three judge panel that unanimously ruled the city was within its right to throw out results of a promotional exam because too few minorities scored high enough. The decision relied on precedent not on judicial activism. The case, known as the New Haven 20, is now before the Supreme Court.

Conservatives also cite a speech Judge Sotomayer made at Duke University in 2005 as evidence she will make policy from the bench. She said, "Court of appeals is where policy is made. And I know this is on tape and I shouldn't say that because we don't make law." But they leave out or dismiss the follow on sentence, "I'm not promoting it, I'm not advocating it . . . " She went on to clarify her comment, "When you're on the district court, you're looking to do justice in the individual case, so you're looking much more to the facts of the case than you are to the application of the law because the application of the law is not precedential, so the facts control. On the court of appeals, you're looking to how the law is developing so that it will then be applied to a broad class of cases. So you're always thinking about the ramifications of this ruling on the next step of the development of the law."

Judge Sotomayer may have been blindsided by an anonymous quote that she in not really smart. The fact that she finished second in her class at Princeton University and edited the Yale Law Review seems to indicate the opposite. But that did not persuade Republican strategist Karl Rove from spouting this comment: "I know lots of stupid people who went to Ivy League schools." Never mind that his former boss, President George Bush, was barely an average student at Yale.

At best, these points will make for a lively discussion when Judge Sotomayer seeks confirmation before the Senate Judiciary Committee. But Republicans have to tread carefully or they risk alienating the few Hispanic supports they do have. There are already more Hispanics in the United States than there are Canadians in Canada. Soon there may be more Hispanics than Republicans.

Judge Sotomayer's life story is powerful and compelling. Raised in a Bronx housing project, she has had to overcome great obstacles to achieve success. Unless something more serious comes up, Judge Sotomayer will take her place on the Supreme Court. She will be the third woman and first Hispanic to serve her country as a justice. She is living the American dream.

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