Ignore Intellect, Embrace Ethnicity

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” – Rev. Martin Luther King Jr.

All the headlines, commentary, and punditry surrounding the recent appointment of Judge Sonia Sotomayor has brought forth an important question for Americans to consider: what makes a good judge? And in this particular case, what matters more in considering the qualities of a judge: race/ethnicity or their abilities as a jurist concerning the highest law? With all due respect to Judge Sotomayor, neither race nor jurisprudence warrant a seat on the U.S. Supreme Court.

If there is reason to confirm Judge Sotomayor on the basis of her brilliant legal mind, it is going overlooked. The focus has almost entirely been centered on her ethnicity and background. This of course includes a quintessentially American story, replete with both warm fuzzy feelings and tear-jerking details. Most of the emphasis is on her race. The argument (articulated by both herself and her supporters) seems to be that she will be a better judge for America because she’s Latina.

So we can forget the importance of legal reasoning in favor of her background, her “compelling personal story”, and her brown-ness. Sound ridiculous? Well, it is. It reeks of prejudice and racial preference when put in plain terms. She’s a favorite of the President because of her ethnicity, there’s little argument about it.

The travesty here is that the great aim of liberty and justice is equality under the law. To the degree in which people are treated differentially under one law, there will be injustice. Giving preferential treatment based on race is no more honorable than the Jim Crowe laws decades ago. Racial preference by it’s very definition is the antithesis of equality under the law. Affirmative action, nominating judges based on race, and other prejudice sentiments make a mockery of equality under the law, just like “separate but equal” did in years past. Not only is Sotomayor’s nomination teeming with prejudice, much of her judicial thought is as well.

Sotomayor’s jurisprudence (or lack thereof) regarding Ricci v. DeStefano is appalling. In this case a test was administered to firefighters in New Haven, CT so to promote the highest scoring individuals. When the results came back, the high-scoring field was not sufficiently racially diverse so the city refused to certify the test (in essence, they threw the test out).

My legal reasoning indicates that the case should be overturned and the higher scoring firefighters given promotions based on the merits of their performance, not the color of their skin. But even if you don’t agree with that outright, a careful consideration is due to these firefighters given the complex legal issues at stake. That apparently was too much to ask from Sotomayor.

Without any diligent effort, Sotomayor neglected to provide opinion on the matter. Rather, she simply joined the other judges on her panel in issuing an “unpublished summary order”, a decision only intended to be used when a case is not of any substantial weight and no purpose could be served from serving an opinion. With grave Constitutional issues hanging in the balance, she punted the decision.

And this wasn’t the first time she had joined such a cavalier, unwarranted ruling. She used the same tactic in Didden v. The Village of Port Chester, a case in which a landowner had his property seized for refusing to comply with a politically powerful developer. The city exercised expanded power under the “Takings Clause” from the Kelo v. City of New London decision.

Kelo has been ridiculed as a gross violation of property rights by legal minds across the political spectrum. Many states subsequently passed laws forbidding the government from unwarranted seizure of property. Yet again, Sotomayor flippantly avoided weighty legal issues in the case and provided no comment. She simply felt the seizure of land was right and offered no legal opinion in justification.

There has also been some news of late concerning Sotomayor’s dissenting opinion in the Hayden v. Pataki case dealing with convicted felon’s voting. In her dissent she implies that felon’s are unjustly disenfranchised when not allowed to vote. Obama fancies empathy as a highlight on a judicial resume. So empathetic they believe convicted felons are disenfranchised? I digress.

In addition, Sotomayor—when given the opportunity—has failed to confront the delicate issue of the Second Amendment in any meaningful way. In the case U.S. v. Sanchez-Villar Sotomayor joined a decision that concluded "the right to possess a gun is clearly not a fundamental right." The case dealt with the State’s ability to ban private citizens from possessing weapons. Even if you’re not a card-carrying member of the NRA be aware: there is a host of legal tension around this issue. Does the Second Amendment apply only to the U.S. Congress? To the States? With bold contempt again, Sotomayor joined in the unsigned opinion (meaning the author of the opinion is ambiguous) thus in the Sanchez-Villar case. Apparently the complex legal issues and Constitutional severity weren’t enough to induce a response from Sotomayor.

Sotomayor will not make a suitable judge for the U.S. Supreme Court. She has been selected and supported thus far because of her race, an effort as incorrectly prejudice as it is unjust. Her affinity for avoiding difficult decisions is hardly becoming of a Supreme Court Justice and her demonstrable contempt for the Constitution is reason alone to oppose her nomination.

Since I don’t believe one race ought to be given preference over another, I’m left without reason to support this nominee. Our President can’t say the same, so what does that say about him?

“…one should hope that the men who head the state resemble the law, for the law does not punish because it is angry but because it is just” – Marcus Tullius Cicero