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Linda Chavez
Linda Chavez
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Shaping the Court

Comment

Presidential elections have consequences — and few are more important than the power to shape the federal judiciary. With the selection of Judge Sonia Sotomayor to replace retiring Justice David Souter on the U.S. Supreme Court, President Barack Obama has begun the process of altering the federal courts.

Sotomayor's selection has sparked controversy already, as much for the judge's pronouncements off the bench as for her judicial decisions as a member of the 2nd U.S. Circuit Court of Appeals and as a trial judge. Critics have pointed especially to her comments at a conference at Duke University in 2005, in which she seemed to imply that the role of appellate courts is to set policy, and to a 2001 speech published in the Berkeley La Raza Law Journal.

"Justice (Sandra Day) O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," Sotomayor is quoted in the journal as saying. "I am … not so sure that I agree with the statement. … 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," she said.

The statement is offensive, and it is also highly revealing. However, it says as much about President Obama's judicial philosophy as it does about Judge Sotomayor's. In announcing her appointment, the president made clear that he picked Sotomayor because he shares her view that certain personal experiences are as relevant as intellect or judicial impartiality in making a good justice.

"Experience being tested by obstacles and barriers, by hardship and misfortune, (and) experience insisting, persisting and ultimately overcoming those barriers" are important qualifications, he explained in introducing Sotomayor. "It is experience that can give a person a common touch and a sense of compassion — an understanding of how the world works and how ordinary people live.

And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court," he said.

President Obama's words were not as racially charged as Judge Sotomayor's, but the intent was the same. He will choose judges whose life experiences will make them sympathetic to certain classes of people: the poor, ethnic minorities, women and others he considers deserving of empathy.

I expect that in her confirmation hearings, Judge Sotomayor will try to soften her claim that "a wise Latina woman" reaches better conclusions as a judge than a white male. Too bad, because her original candor at least would provoke a real debate over whether a justice should base his or her decisions on the law or on personal experiences and preferences.

This is a debate worth having — and one that avoids defining Judge Sotomayor as a racist, which some opponents of her nomination have charged she is. It isn't just her views on race or gender that are at issue; it is more fundamentally her judicial philosophy that the Senate should consider.

Before the Senate votes to confirm Judge Sotomayor, senators should know whether she believes a justice should be impartial or favor certain groups. They should find out whether she would apply the law as it is written or to achieve a particular outcome. And they should examine her record carefully. She has decided hundreds of cases over 17 years on the federal bench.

A good place to begin is by looking at her recent role at the 2nd Circuit in Ricci v. DeStefano, a case in which Judge Sotomayor sided with the city of New Haven, Conn., in denying promotions to one Hispanic and 17 white firefighters who scored highest on promotion exams. They were denied because no African-Americans qualified. Her decision not only showed precious little wisdom but also, more importantly, ignored both civil rights law and constitutional equal protection. In this case, Sotomayor's empathy turned out to be little more than bias toward the outcome she preferred.

Linda Chavez is the author of "An Unlikely Conservative: The Transformation of an Ex-Liberal." To find out more about Linda Chavez, visit the Creators Syndicate web page at www.creators.com.

COPYRIGHT 2009 CREATORS SYNDICATE, INC.



Comments

1 Comments | Post Comment
Ma'am;...I disagree...The question is not whether she can be impartial...The question is whether she has the great good sense to see justice, and move ever closer to it... We follow the constitution...The constitution is our great faith...But faith without works is dead...The constitution must be made to work, and this ultimately means judging the constitution and not only judging by it...The thing must work for the living, and it is not enough that it once worked for the dead, if ever it did work for them, considering that their fondest dream has led to our nightmare... Now, it is easy enough to judge... Knowledge is judgement, said Immanual Kant; and we all must decide... Do you know if this place called America is working???If it is working for you, does that mean it is working for the guy down the street, the black, the woman, the child??? Everyone is saying just the opposite; that it does not work, and some blame the fact that we do not hold to the constitution, and some recognize that we cannot recapture the spirit of it, which is the spirit of this commonwealth... I think enlightened judges are not enough to fix the problems of representative government that is no longer representative....Since so many want the courts to get out of the way of majority rule; then ask: Shall the minority have any rights the majority are obligated to respect??? Passing all problems over to the court is what we have too long done...The court is never representative, and is stuck in its form which denies even the right of justices to seek justice...But justice is our life's work, and the denial of rights is no part of the work of enlightened government... So if it were me in the black; I would judge the constitution by the preamble where is clearly stated the goals for which this government was made...And then I would toss out the whole thing following that point... Let us once more make a constitution...Let us keep the same just goals, and build a government to recognize and defend rights... Let individuals and institutions attack rights, and say no government is worth having or paying for if it offers no defense of right...Thanks...Sweeney
Comment: #1
Posted by: James A, Sweeney
Sun May 31, 2009 5:45 AM
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