Sizing Up Sotomayor

I’ve been laid up with a mean cold the last several days, so I’m a bit late in adding my thoughts to President Obama’s nomination of Judge Sotomayor. No worries though, as my talented and capable colleagues here at Ex Deserto have articulately addressed the major issues. A few additional thoughts, though:

(1) The Supreme Court is not a representative institution, so let’s stop treating it like one. There are only nine slots, so we can’t afford to nominate anyone other than the most intelligent and qualified individuals to fill those slots. In the past, Supreme Court appointments have been political chips or paybacks, but for the most part over the last 30 years, our presidents have made efforts to nominate well-qualified and intelligent individuals. Conservatives may disagree with their ideologies, but Justices Ginsburg and Breyer are intelligent and articulate judges and were among the most-qualified of possible (liberal) nominees in the mid-1990s. Likewise (though you’ll probably never find a lib to agree), Chief Justice Roberts and Justice Alito merited their nominations by President Bush.

Judge Sotomayor may very well prove herself to be up to the task if she is confirmed, but I don’t think an objective list of the top 20 or so candidates for an Obama SCOTUS appointment would include her based on capability alone. And much of the criticism, at least prior to the announcement, came from the left.

Thomas Sowell, as usual, brilliantly articulates this point in his column today. When choosing a heart surgeon, he asks, is there any criteria other than skill? Why should it be different when choosing a Supreme Court justice?

(2) There is no such thing as reverse discrimination. Much of the debate surrounding Sotomayor has centered upon her statements on race and her race-driven decision in the Ricci case out of New Haven, CT. Liberal talking heads and Obama’s spinsters have made a conscious effort to use the term “reverse discrimination” at times, which is patently disingenuous. Discrimination is discrimination is discrimination. Discrimination by a minority against white person based on race is still discrimination. Discrimination by a white person against another white person based on race is still discrimination. Discrimination by a minority against another minority based on race is discrimination. And, of course, discrimination by a white person against a minority based on race is still discrimination. They’re all discrimination–and they’re all wrong. Fortunes should rise and fall based upon ability, not upon the luck/lack thereof of being born in a particular place or with a particular color of skin. The Supreme Court has said as much. See, e.g., Adarand Constructors, Inc. v. Pena; Parents Involved in Community Schools v. Seattle School District No. 1; Shelley v. Kraemer; and Brown v. Board of Education; .

(3) The president indicated that he wanted a nominee who uses “empathy” when making decisions. Sotomayor has indicated in the past that that is what she has done and will continue to do. Not only is that practice foreign to a nation built upon the rule of law and a violation of the Supreme Court’s oath of office, it is probably a violation of the 14th Amendment’s promise of equal protection under the laws (again, borrowing from Sowell).

Perhaps, however, a Justice Sotomayor will “grow” in office over the next few years under Justice Scalia’s tutelage by learning what the Constitution really means and how it should be applied. As was stated before in this space, we’re due one.

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