The Washington Times - May 27, 2009, 12:26PM

OPINION/ANALYSIS

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While Republican leaders are publicly taking the high road by insisting on a “wait-and-see” approach to the Senate confirmation of 2nd Court of Appeals Judge Sonia Sotomayor, conservative advocacy groups and legal think tanks aren’t as constrained. Press releases declaring her liberalism have been on full blast since President Barack Obama’s Tuesday announcement yet none really point out the obvious – the role race and gender played in the appointment. The irony is worth noting since liberals have usually been quick to cry tokenism when it comes to Republicans making minority selections to the courts or otherwise. So why aren’t Republicans doing the same with this obvious affirmative action selection? (The question answers itself.)

Don’t get me wrong, as a black woman I can say that from a cosmetic view having that kind of representation on the High Court does paint a strong and compelling picture for future generations of female would-be jurists of a browner hue. Sotomayor’s background also makes her relatable to many “mainstream” Americans and if noting else fits the “empathy” bill President Obama has been insisting on. Sotomayor’s mother, according to President Obama:

“..sent her children to a Catholic school.. out of the belief that with a good education here in America all things are possible.”

Ironic since that’s what Justice Clarence Thomas’ impoverished (grand) parents also believed and did with him. Thomas’ story is just as compelling and inspiring, and has many similarities to Sotomayor’s except that he was taken to the woodshed during a Senate confirmation “lynching” that proved nothing but at what lengths some liberals will go to oppose a minority nominee who doesn’t fit their ideological ilk. We didn’t hear much about the “hardship” and “misfortune” of Thomas’ upbringing. You’ll have to read his biography for that. But I digress, that’s for another post.

Like Sotomayor and for many young girls, I was also propelled into my vocation by reading the investigative Nancy Drew book series described in President Obama’s remarks. Inspired to dream big, it’s another down home factoid that makes her so, “baseball and apple pie.” And then, her professional and academic credentials are virtually impeccable. But beyond the standard resume and feel-good stories of hope and determination, Sotomayor doesn’t strike me as particularly impressive. Best among the nation’s legal minds, an impartial arbiter of the law, a cut above – are descriptions that seem to be lacking. In fact, some who have worked with her in the legal community have characterized her as a bully on the bench. And public remarks from Sotomayor have come off flat, sometimes flippant and uninspiring. (Then again judges – except the TV series kind – aren’t particularly known for their charisma.) But above all, what does give me pause, are her outspoken remarks about judicial “policymaking” and racial retribution – which are also among the concerns being raised by some senators. We’ll learn more in the days and weeks to come but simply being a female, racial role model doesn’t trump Constitutional integrity in my view. That’s one of the problems with knee-jerk affirmative action.

Determining Sotomayor’s “judicial temperament,” “vetting her fitness” and questioning whether she is more in tune with the mainstream than the extreme left wing, are legitimate points being made by those on the right. So too should be the fact that she is a woman and a Hispanic (a point not lost on a single Democrat) who was also picked because she is a woman and “the first Hispanic.” Is she “the best there is?” Many legal scholars would argue, no. But for the empathetic, racially obsessed she fits the bill (since the Court “needs” a Latina as the argument goes.) Effectively making her an affirmative action pick, despite the left’s insistence otherwise and MSNBC’s Rachel Maddow’s attempts to downplay it:

“To the extent that the attacks on her are based on the idea that she was an affirmative action choice – I think that’s probably the weakest ammunition they’re going to have against her. I mean you don’t get to be summa cum laude at Princeton on the basis of some sort of favoritism.”

Which is odd coming from a liberal, since it has been Democrats and those on the left who have strongly advocated for affirmative action and demonized Republicans for decrying such “favoritism.” Now, the shoe is on the other foot and you have Democrats making the Republican argument and expressing outrage over any mention of classifying Sotomayor as a benefactor of the programs they’ve so vehemently promoted. Yet, if the left so strongly supports affirmative action then what would be so wrong with placing Sotomayor in that category? It’s not necessarily the strongest argument against her nomination but it is among the arsenal of established judicial standards of opposition stored up by Democrats that Republicans rightfully have at their disposal. In addition, the “race neutral” President Obama clearly intimated at the role race (and likely gender) played in his decision when he stated:

“And when Sonia Sotomayor ascends those marble steps to assume her seat on the highest court in the land, America will have taken another important step toward realizing the ideal that is etched about its entrance: Equal justice under the law.”

He also stated that a judge who can impartially interpret, not make, law is not enough:

“We need something more.”

That something more, no doubt has to do with being a double minority. And the president surely took into account what most of us now know about the judge’s views on race and her position on the court. During a Berkeley Law School lecture in 2001 Sotomayor said:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

How’s that for affirmative action? Or better yet, reverse discrimination?

-Tara Wall is a News Anchor & Political Analyst at The Washington Times and editor of TheConservatives.com.