CGG Weekly, July 17, 2009

"The urge to save humanity is almost always only a false-face for the urge to rule it."
H.L. Mencken

This week, the country witnessed the heavily televised confirmation hearings on the nomination of Judge Sonia Sotomayor to the Supreme Court. Besides the rather galling partisan support (read: fawning infatuation) that she received from the majority Democrats on the Senate Judiciary Committee before whom she appeared, the "wise Latina" from the Second Circuit Court of Appeals, obviously intently coached by the Obama administration, deflected and sidestepped most questions concerning her controversial statements, rulings, and associations. While she in no way did this deftly—her comments and answers were often rambling and occasionally non-sequiturs—she did it well enough to avoid causing any fatal harm to her nomination.

However, her answers were disingenuous at the very least. Commenting on Sotomayor's second-day testimony, Georgetown law professor Mike Seidman, an avowed liberal, said: "I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified." In this instance, he was reacting to one of her answers that obviously contradicted a core belief and practice, that a judge cannot just simply apply the law to the facts of a case—in other words, that a judge must use his or her beliefs, background, and presuppositions to come to a conclusion on a matter. In essence, this is the "empathy" argument that has been so hotly debated since Obama announced her nomination. She went so far in her denial as to say, "I wouldn't approach the issue of judging in the way the President does."

Even early supporters like the Washington Post's Eva Rodrigues wrote: "I'm surprised and disturbed by how many times today Sonia Sotomayor has backed off of or provided less-than-convincing explanations for some of her more controversial speeches about the role of gender and ethnicity in judicial decision-making." She even claimed that she had never read—more, was unaware of—the Puerto Rican Legal Defense and Education Fund legal arguments in Ricci v. DeStefano, otherwise known as the New Haven, Connecticut, firefighters case. From 1980 to 1992, Sotomayor sat on the board of directors of this nonprofit law group, where she was a top policy maker. Since she had herself ruled on the case—and was later overturned by the Supreme Court—it is almost impossible to believe that she was unaware of what her former organization had argued about it.

This particular case has become the poster child, as it were, for the brand of political and judicial activism that Sonia Sotomayor endorses and practices: identity politics. The case involved a test given to firefighters who wished to be promoted. As it turned out, only whites and one Hispanic achieved the required grades to earn promotion, so New Haven's powers that be decided not to certify the results, claiming that the test was unfair to blacks and other minorities. The lawsuit, by the firemen who passed the test, claimed that New Haven had discriminated against them racially—what is commonly called reverse racism. Sotomayor, along with a small panel of other Second Circuit judges, upheld a lower court ruling that found for the city. Her ruling is one among many in which she decisively favors minorities regardless of the merits of the case.

In another case, Gant v. Wallingford Board of Education (1999), the parents of a black student sued, claiming that their son had been harassed due to his race and that the school had discriminated against him by demoting him from first grade to kindergarten without their consent. The parents maintained that white students in the same situation were treated differently. Due to the lack of evidence of harassment, Sotomayor was forced to agree with the dismissal of that claim, but wrote that she would have allowed the discrimination claim to go forward because the grade-demotion was "contrary to the school's established policies." This, she said in her dissent, along with the school's typical treatment of white students, "supports the inference that race discrimination played a role."

In testifying before the Senate Judiciary Committee, columnist Linda Chavez urged the Senators not to confirm Sotomayor, saying, "It is clear from her record that she has drunk deep from the well of identity politics." Later in her testimony, she said:

Judge Sotomayor's offensive words [the "wise Latina" statements] are a reflection of her much greater body of work as an ethnic activist and judge. Identity politics is at the core of who this woman is. And let me be clear here, I am not talking about the understandable pride in one's ancestry or ethnic roots, which is both common and natural in a country as diverse and pluralistic as ours. Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one's own group are victims in a perpetual power struggle with the majority.

Chavez went on to cite many instances of Sotomayor's involvement in identity politics, from her undergraduate days to her time with the Puerto Rican Legal Defense and Education Fund and to her well-known views that the death penalty and English-language requirements are racist. She concluded her remarks with:

Although she has attempted this week to back away from her own words—and has accused her critics of taking them out of context—the record is clear: Identity politics is at the core of Judge Sotomayor's self-definition. It has guided her involvement in advocacy groups, been the topic of much of her public writing and speeches, and influenced her interpretation of law.

There is no reason to believe that her elevation to the Supreme Court will temper this inclination, and much reason to fear that it will play an important role in how she approaches the cases that will come before her if she is confirmed.

The U.S. Constitution, along with its amendments, is a document that recognizes certain rights as granted to Americans regardless of race, origin, religion, creed, gender, and social station. Although it has been used as one, it is not a club by which minorities can beat concessions out of the majority. In both its wording and its intent, every citizen is supposed to receive equal treatment under the law. And the nation's judges all the way up to the Supreme Court are to rule under this principle, taken directly from the Bible:

Hear the cases between your brethren, and judge righteously between a man and his brother or the stranger who is with him. You shall not show partiality in judgment; you shall hear the small as well as the great; you shall not be afraid in any man's presence, for the judgment is God's. (Deuteronomy 1:16-17, emphasis ours)

It is curious that this "wise Latina" cannot understand that, if she fought for impartiality, we would truly have a "color-blind" society, the purported goal of intellectual progressives for decades. Yet, it is naïve to say so, since that is not what they want at all; they want power, not equality. And Sotomayor, the new face of identity politics, will now be in a position to wield it.