- The Washington Times - Saturday, July 4, 2009

For the fourth time in six cases, the Supreme Court of the United States has reversed a decision for which Judge Sonia Sotomayor voted on the 2nd U.S. Circuit Court of Appeals. If this nominee were a white male, would this not raise questions about whether he should be elevated to a court that has found his previous decisions wrong two-thirds of the times when those decisions have been reviewed?

Is no one supposed to ask questions about qualifications simply because this nominee is Hispanic and a woman? Have we become that mindless?

Qualifications are not simply a question of how long you have been doing something, but how well you have done it. Judge Sotomayor certainly has been on the federal bench long enough, but is being reversed four out of six times a sign of a job well done?

Would longevity be equated with qualifications anywhere else? Some sergeants have been in the Army longer than some generals, but nobody thinks that is a reason to make those sergeants generals.


Performance matters. And Judge Sotomayor’s performance provides no reason for putting her on the Supreme Court.

Although the case of the Connecticut firefighters is the latest and best-known of Judge Sotomayor’s reversals by the Supreme Court, an even more revealing case is Didden v. Village of Port Chester, in which the Supreme Court openly rebuked the unanimous three-judge panel that included Judge Sotomayor for “an evident denial of the most elementary forms of procedural due process.”

Longevity is not the only false argument for putting Judge Sotomayor on the Supreme Court. Another is the argument that “elections have consequences,” so that Mr. Obama’s win in last year’s election means his choice for the Supreme Court should be confirmed. This is a political talking point rather than a serious argument.

Of course elections have consequences. However, senators also were elected, and the Constitution of the United States gives them both the right and the duty to say “yes” or “no” to any president’s judicial nominees.

It is painfully appropriate that the case that finally took the Sotomayor nomination beyond personal biography is one in which the key question is how far this country will go on the question of racial representation versus individual qualifications.

Too much that Judge Sotomayor has said and done over the years places her squarely in the camp of those supporting a racial spoils system instead of equal treatment for all. The organizations to which she has belonged and statements she has made repeatedly - not just an isolated slip of the tongue taken “out of context” - as well as her dismissing the white firefighters’ case that the Supreme Court heard and heeded, all point in the same direction.

Within living memory, there was a time when someone who was black could not get certain jobs, regardless of how high that individual’s qualifications might be. It outraged the conscience of a nation and aroused people of various races and social backgrounds to rise up against it, sometimes at the risk of their lives.

Many, if not most, thought they were fighting for equal treatment for all. Today, too many people seem to think it is just a question of whose ox is gored - or for whom one has “empathy,” which amounts to the same thing in practice.

Clever people say none of this matters because Republican senators don’t have enough votes to stop this nominee’s confirmation. But that assumes every Democrat will vote for her regardless of what the public thinks. It also assumes that alerting the public doesn’t matter, now or for the future.

The standards for judging the nomination of Judge Sotomayor are not the standards of either the criminal law or the civil law. That is, nothing has to be proved against her “beyond a reasonable doubt” or even by “a preponderance of the evidence.”

Judge Sotomayor is not in any jeopardy that would entitle her to the benefit of the doubt. It is 300 million Americans and their posterity who are entitled to the benefit of the doubt when the enormous power of determining what their rights are is put into anyone’s hands as a Supreme Court justice for life.

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