- The Washington Times - Wednesday, July 15, 2009

OPINION/ANALYSIS:

President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court speaks volumes about the inauspicious future of the high court and Mr. Obama’s chronic hypocrisy.

As U.S. senator, Mr. Obama voted against the confirmations of Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr. because he did not believe they would incorporate an empathy factor in their jurisprudence. Since life is unfair, Mr. Obama believes that federal judges should mitigate the unfairness by placing their thumbs in favor of the less fortunate.

Justices should ask advocates for parties not what does the Constitution say about the question, but what type of judicial decree would bring the greatest enlightenment to society — a question more apt for philosophers fashioning a utopian world. Mr. Obama has shifted his tone in the White House. He believes Judge Sotomayor should not be attacked by Republican senators based on her conception of the judicial function.

Judge Sotomayor’s nomination pushes the court another step toward acting as a popular institution representing particular constituencies rather than as an independent branch of government representing the rule of law irrespective of race, religion, ethnicity or gender. The whole reason for an appointed Supreme Court with life tenure is to check the impetuosities and myopia of purely representative institutions.

Father of the Constitution, James Madison, warned against legislative excesses in the Federalist Papers with the observation that, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

At present, the executive branch is most inclined to flout the Constitution regarding national security, private enterprise, secrecy, or otherwise. The purpose of the Constitution is to rein in popular majorities and thwart the actions of the Congress or the president because of their propensity for oppressing dissidents of minorities.

Judge Sotomayor was nominated because of her gender and ethnicity. She has never said anything profound or memorable in her long years as a federal trial or appellate judge. She has not written incisive books about the law in the manner of Justices Oliver Wendell Holmes, Benjamin Cardozo or Antonin Scalia.

A white male with her credentials would not have made it to Mr. Obama’s long roster of candidates to replace retiring Justice David H. Souter. It was thought by Mr. Obama and his supporters that one woman justice on the high court did not adequately represent a female understanding or perspective on the law, i.e., avid disciples of erstwhile presidential candidate and New York Sen. Hillary Rodham Clinton.

Former Justice Sandra Day O’Connor hoped that she would be succeeded by a woman to maintain a roster of at least two female justices, including incumbent Justice Ruth Bader Ginsburg. Judge Sotomayor perceives judging as inexorably influenced by her gender or ethnicity. She has sermonized, “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.” Judge Sotomayor added that the ethnicity of gender of a judge “may and will make a difference in our judging.”

Judge Sotomayor will certainly be confirmed by a Democrat-controlled Senate.

Democrats believe Mr. Obama is the Messiah, and would do nothing to cause him embarrassment regarding his maiden Supreme Court appointment. Democrats also correctly discern Judge Sotomayor’s strong sympathies for their political agenda: same-sex marriage, pro-choice, gun controls, anti-death penalty, redistribution of income in violation of contract rights in favor of groups who customarily vote a Democratic ticket, affirmative action for racial or ethnic minorities at the expense of a merit-based standard, the eviction of religion from public life, and muscular government power to regulate every dimension of the environment, including every immediate and remote contribution to global warming.

Republican senators will shy from a filibuster because they are fearful of losing the Hispanic or female voting blocs in 2010. It is only a matter of time when the U.S. Supreme Court will come to resemble proportional representation of politically potent ethnic, racial, gender or other groups.

Over the next few decades, its membership will feature 4-5 women, an Asian American, two Hispanics, two blacks, one homosexual, and one American Indian. They will have been appointed not for awesome legal credentials, but because the president believed each would bring him greater political popularity. The justices themselves will perceive their respective roles as seeking to achieve constitutional victories that will help their constituent groups. Like Judge Sotomayor, they will celebrate rather than suppress the temptation to conceive of judging as politics by other means.

The Supreme Court will be transformed from an institution tasked to interpret the Constitution to honor the intent of its makers with complete neutrality to a tribunal in which the justices openly embrace judging as an instrument to advance the fortunes of their particular racial, ethnic, religious, gender or sister political constituency. Rather than suppressing their personal biases, the justices will be expected and expect themselves to enshrine their prejudices in constitutional decrees.

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