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How Republicans can win by losing in the Sonia Sotomayor Supreme Court confirmation battle
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There are two inescapable realities with regards to Obama's selection of Sonia Sotomayor to replace Justice David Souter on the Supreme Court. One is that she is an unabashed liberal judicial activist. The other, is that Republicans don't have the votes to derail her confirmation.
The only legal opinion written by Sotomayor that one needs to read in order to gain an insight into her judicial temperament is her unprecedented summary dismissal, while she was on the Second Circuit Court of Appeals, of the reverse discrimination case (Ricci v. DeStefano) filed against New Haven by white firefighters, who were denied promotion, despite achieving sufficient scores on the race-neutral examination solely on the basis that no blacks had achieved passing scores.
So egregious was the abrogation of her judicial responsibility, as a justice of the Court of Appeals, to deal with the numerous constitutional issues the Ricci case presented, that it prompted fellow justice, Jose Cabranes, a Clinton appointee, to remark in a withering dissenting opinion:
"The core issue presented by this case — the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants — is not addressed by any precedent of the Supreme Court or our Circuit. … What is not arguable … is … that this Court has failed to grapple with the questions of exceptional importance raised in this appeal."
Her confirmation hearing provides an auspicious occasion for a discussion of the Ricci case for, the Supreme Court is slated to decide that case on appeal from the Second Circuit, and Sotomayor is at the center of the storm. There is a very real likelihood that Sotomayor will have the dubious distinction of joining her fellow justices just as they overturn her peremptory and unjustified dismissal of one of the nations' landmark civil rights decisions.
Thus, Republicans should make Sotomayor's confirmation hearing a national referendum on the holding in the Ricci case. Indeed, the first witness they should call to testify is Frank Ricci himself. By doing so, they can provide the American people with a teachable moment on what "equality" under the law now means in our society. Do the American people want justices like Sotomayor who believe in equality of result or justices who believe in equality of opportunity?
Proponents of modern day affirmative action theory, including Obama, Sotomayor and the entire Democratic Party subscribe to the following proposition — codified by numerous judicial decisions — that holds that the way to end alleged and ill-defined discrimination against blacks is to practice overt discrimination against whites. The rulings in many of the reverse discrimination lawsuits are little more than exercises in racial bean counting premised on the concept of "disparate impact."
Sotomayor's confirmation hearing will provide a long-overdue forum for a national discussion on this issue. When he tells his story, Ricci will make a compelling and sympathetic witness, and will cause the American people to ask the following question: do they want more justices of Sotomayor's ideological ilk who will enshrine the perverse and pernicious principles of the Ricci decision as the law of the land?
Sotomayor embodies the identity politics that has achieved primacy in today's Democratic Party. Obama's criteria of "empathy" is code for justice as the pursuit of and perpetuation of identity and ethnic grievances. Under this jurisprudential philosophy, some are more equal than others; the essential attribute for dispensing justice is the color of one's skin and/or membership in a minority group. The holy gospel of discrimination law, as currently practiced, is the increasingly meaningless and amorphous concept of "disparate impact." In other words, ideology or the achievement of preferred political outcomes are more important than impartiality when ruling on constitutional issues from the bench.
The Ricci case represents the pinnacle of a warped jurisprudence that has attempted to deal with the purported instances of discrimination against blacks not by examining whether there were incidents of actual discrimination perpetrated against minorities by individuals or organizations, but rather by the failure to achieve politically desirable outcomes. The evolution of "civil" rights law in this country over the past thirty years has evolved into the convoluted holding in the Ricci case: that if not enough blacks achieve scores sufficient for promotion, no whites, who successfully passed the exam can be promoted.
Sotomayor views her ethnic and gender identity as an essential attribute of her ability to render justice. But how does this square with the most important aspect of ruling from the bench, the ability to remain impartial? During the confirmation hearing, her Republican interlocutors should ask her to explain the following statement of her view that her identity is indispensable and indeed essential to her role as a judge: "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 hasn't lived that life." As the National Journal's Stuart Taylor notes,
Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
Republicans are impotent to prevent Sotomayor from being confirmed. But, by their principled opposition and deft questioning of the nominee, they can provide the American people with a view of President Obama's notion of justice. It is a justice that is neither blind nor impartial.
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