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June 1, 2009

The Empathetic Activist

Richard B. Weldon Jr.

President Barack Obama has thrown down a political gauntlet with the selection of federal Appeals Court Judge Sonia Sotomayor to be the next United States Supreme Court justice.


Her background reads like a character description from Central Casting: A first generation American, a proud Hispanic woman, and the product of a very difficult upbringing. Finally, she was a student who worked hard to overcome educational barriers and eventually graduate from an Ivy League law school.


Nominated to the federal court bench by President George H. W. Bush, and promoted to the appellate bench by President Bill Clinton, Judge Sotomayor has survived Senate nominations before. She even successfully negotiated a Senate confirmation when the Republicans controlled the Senate.


President Obama told us he'd appoint a jurist whose life experience and judgment demonstrated empathy. He wanted someone who hadn't been locked in an ivory tower, but had dealt with life's challenges directly.


Unlike his recent predecessors, President Obama places a higher degree of importance on intangible and obscure qualities and characteristics, the "fuzzy" stuff. President George W. Bush swore off litmus testing on issues, but made it very clear that his high court choices would have to commit to strictly interpret the Constitution.


Judge Sotomayor appears to possess a very different view of an appellate court. While serving on a panel at the Duke University School of Law, she suggested that clerkships within an appeals court were valuable because that level of our judicial system is "where policy is made."


Sensing the potential reaction to her words, she immediately laughed off the remark, hinting that a sitting judge probably shouldn't say such things. Truth is, she said it. Further, she actually meant it.


Even her decisions affirm her view of an appellate court. In a case involving a group of white and Hispanic career firefighters who were denied promotion, Judge Sotomayor refused to hear their claim. In essence, they alleged that they were illegally denied a promotion they had met all documented qualifications for.


Because no African-American firefighters ranked in the top tier of the testing criteria, no African- American firemen were listed on the promotion schedule. The municipality refused to promote the white firefighters, and instead developed additional criteria to achieve a racial balance.


When confronted with this case, Judge Sotomayor simply refused to hear the arguments, deciding the appeal lacked merit. In this instance, the judge was making policy, in effect ruling that fairness was not the issue, but that local governments should take extra steps to bypass clearly qualified employees in order to promote lesser qualified candidates based solely on race.


We've had affirmative action for decades. It serves an important role in our process, whether talking about housing, education, or employment. The difference here is that the firemen involved did nothing wrong. In fact, they did everything right. They studied, prepared well, and passed the required tests. They deserved to be at the top of the list, and they deserved to be promoted.


That's not affirmative action, regardless of Sonia Sotomayor and her empathetic opinion. That's reverse racism, pure and simple.


In another stunning statement, Judge Sotomayor suggested that as a Hispanic woman, and considering her background, she was more likely to offer a better judicial opinion than a white male counterpart. Why, because she likes spicy food? What an asinine comment to make, and a legitimate basis to question her fitness to serve on the Supreme Court.


Back to that gauntlet. Robert Gibbs, the witty and slightly sarcastic White House spokesman, issued an ominous warning. He suggested that pundits and politicians alike ought to be careful about how they refer to Ms. Sotomayor as the summer drags on and the confirmation process begins.


The inference is unmistakable. Anyone, but especially any Republican, who attacks Judge Sotomayor in the wrong way will be a racist, a sexist, and a generally horrible person.


I guess Judge Sotomayor is special, and deserving of kid glove treatment in her confirmation. As I recall, Supreme Court Associate Justice Clarence Thomas, a conservative African-American, was afforded no such race-based courtesy by Sen. Ted Kennedy, Sen. Joe Biden, and the other Democrats on the Senate Judiciary Committee during his confirmation proceeding.


Should Sonia Sotomayor be personally attacked or belittled because of her gender or ethnicity? Of course not. Anyone who does that deserves our collective disrespect and derision.


Should her past statements and court opinions be thoroughly scrutinized? Of course they should. She is no better than anyone else who has been nominated to fill a lifetime appointment on the highest court in our nation.


This process of “advise and consent” should proceed carefully, thoughtfully, and deliberately. Judge Sotomayor has a wonderful personal story to tell America, and we should all listen. Senators should ask her about her thoughts, visions, and the process she uses to develop a legal opinion. Even "hot button" issues are fair game, but no one should expect Ms. Sotomayor to lay bare her views on those issues. As with past nominees, it will be an uncomfortable dance with the Senate, sort of a Try To Nail Her Down Two-Step.


I'm waiting to hear how empathy, as a character trait valued by our president, will influence the thinking of a Supreme Court justice. If empathy equates to judicial activism, Sonia Sotomayor will move the Supreme Court distinctly to the left.


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