Why Sotomayor Is Wrong for the Court, & What the GOP Should Do About It

Judge Sonia Sotomayor is exactly the kind of person you don’t want on the Supreme Court.  Her infamous (and recurrent) “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” is a clear sign that she sees issues and situations through a racial, identity-politics prism.  Her comment that the US Court of Appeals “is where policy is made” speaks for itself.  Apologists have tried to explain these statements away as if they were detached, self-evident observations about the way things are, not the way she wants them to be.  But that won’t do—we already have examples of both ideas polluting her judicial analysis.

She opposes capital punishment on the grounds that it “is associated with evident racism in our society” and once claimed that, after reviewing “the current literature of the past two years, no publications have been found that challenge the evidence and the rationale presented in opposition to the death penalty.”  She has complained that her 1998 appellate confirmation was delayed due to racism: “I was dealt with on the basis of stereotypes . . . and it was painful . . . and not based on my record…I got a label because I was Hispanic and a woman and [therefore] I had to be liberal.” However, her racial sensitivity doesn’t extend to white and Hispanic firefighters denied promotions on the basis of their race.  She looks at the phrase, “the right of the people to keep and bear arms, shall not be infringed” and somehow concludes that “the right to possess a gun is clearly not a fundamental right.”  She acknowledges that her judicial analysis is influenced in part by “foreign law and the international community.”

In America’s system of checks and balances, the purpose of the judicial branch is “to secure a steady, upright, and impartial administration of the laws,” as Hamilton writes in Federalist 78.  He goes on to write that judges are to have an “inflexible and uniform adherence to the rights of the Constitution, and of individuals.”  The duty of a judge is to discern the plain meaning and original intent of the law.  Opinions regarding what the law should be—preferences for which policies to adopt and which to repeal—are for the elected representatives of the people to debate and enact.  Why would we even dream of giving policymaking power to unelected magistrates with lifetime offices?

Anyone familiar with the Framers’ thinking, from Federalist 10 to Washington’s Farewell Address, can attest to their belief in the importance of national unity and pursuing the common interest, and in the dangers of factional division along regional, ethnic, cultural, or religious lines.  The idea that it’s even legitimate, much less desirable, for a judge to view legal matters through any sort of racial or identity-politics prism would have been utterly alien to them.  The law is what it is, regardless of its observer, and the mark of a great judge is the ability to look beyond one’s personal baggage and prejudices to seek the truth.

Sonia Sotomayor fails this test, and her nomination doesn’t speak well of the judicial philosophy of the president who nominated her (especially considering that Obama once taught constitutional law).  As a matter of principle, her nomination ought to be opposed—but thanks to the Republican moderation mentality, that’s another can of worms.  The standard reaction to Sotomayor’s known failings by Republicans making the cable news rounds seems to be, “it’s troubling, but let’s see what she has to say during the hearings.”  Translation: “Yeah, we know it looks bad, but we don’t want to make any commitments because we’re scared that we might alienate the Hispanic vote further” (because pandering to liberal Hispanics worked out so well last year).

This is absurd.  Cowardly failure to draw clear distinctions between themselves and the Democrats got Republicans into this mess, and it’s not going to get them out of it.  The idea that whatever Sotomayor says during her job interview should carry more weight than her record is ridiculous.  And I don’t understand the idea that an opposition to this Supreme Court nominee will somehow deplete the “ammo” Republicans will need to battle the next nominee, or the idea that this battle is less important, since she’s just filling a seat that was occupied by another liberal anyway, and fighting isn’t ultimately going to keep her off the court.

Regardless of whether or not Sotomayor becomes a Justice, Republicans need to loudly oppose her nomination, for two reasons.  First, the base cannot be expected to keep fighting for Republicans if Republicans cannot be expected to fight for them.  Second, a fight over Sotomayor’s failings is an opportunity to bring attention to the underlying constitutional issues and principles at stake, which you cannot expect unconvinced Americans to adopt if you only mention them in passing during campaign season.  We always hear about the need to have a “national discussion” over this or that issue.  Well, here’s your chance.  Discuss.