- The Washington Times - Thursday, June 4, 2009

COMMENTARY:

Nothing so polarizes the nation as a nomination to the Supreme Court. Advise and consent is often more like divide and confront, rarely eliciting our best debates. “Borking” a candidate has entered the lexicon of tactics for savaging a nominee by exaggerating positions with simplistic slurs, uttered with an attitude and tone of self-righteousness.

It’s worth repeating in full Sen. Edward M. Kennedy’s famous attack on Robert H. Bork when he was nominated for the Supreme Court because it so maliciously misleads by naming those the senator said would be abused by the nominee if his colleagues dared to confirm him:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”


Quite a hysterical mouthful. Mr. Kennedy, along with his radical feminist and liberal helpers, successfully poisoned the minds of the judgers of the judge, employing emotion rather than rational understanding of the philosophy on which Judge Bork applied the law. After Judge Bork retired from the spotlight, he retaliated with an exaggeration of his own. He called his book “Slouching Towards Gomorrah,” suggesting that the nation was becoming the biblical city burnt to the ground as punishment for the sins of the people. But we no more risk being exiled to Gomorrah than Judge Bork would bring back segregation.

If the title of his book stretched the degree of our decadence, it also developed a cogent argument that sheds light on the reasons for Judge Sonia Sotomayor’s nomination. Unlike Judge Bork, who was nominated because of his brilliance as a lawyer, Judge Sotomayor was chosen for what has come to be called “emotional intelligence,” or empathy, an important qualification for a psychotherapist but dubious qualification for a judge.

While the president went out of his way last week to say he thought his nominee would admit to a poor choice of words when she said a “Latina woman” could reach a “better” conclusion than a white male judge who didn’t share either her experience or instinct, her fans rallied to her: This wasn’t racism, but common political rhetoric of activist groups. The identity culture spawned by the Democrats diminishes the white man while it continues to blame him for patriarchal abuse of power, whether inside the White House before President Obama took office or on Capitol Hill and at the Supreme Court.

Culture in this country, in the Bork scenario, influences politics and liberalism as it is practiced demanding “equality of outcomes.” This certainly was the point behind the decision in the firefighter suit in New Haven, Conn., when Judge Sotomayor voted for dispensing with all promotions because no black qualified for promotion.

Hispanics and the rest of us have every reason to applaud the accomplishments of Judge Sotomayor; her biography reflects the American dream in which we all take pride. No one should deny its importance in establishing who she is, just as many of us appreciated the accomplishments of Justice Clarence Thomas.

Biography is important. It testifies to ambition, hard work, discipline against the odds. But Sen. James M. Inhofe, Oklahoma Republican, is right to question Judge Sotomayor’s “ability to rule fairly without undue influence from her own personal race, gender or political preferences.” How she answers questions like this will be crucial to determining whether she’s a good choice for the high court.

Judge Bork, as a pessimist, believes America is in decline. The “morning in America” celebrated by Ronald Reagan has become late afternoon in America. Judge Bork’s personal experience makes that understandable. Such pessimists see the nomination of Judge Sotomayor as a step toward decline. Her nomination, however, can be an opportunity to examine the hazards of identity politics. The task before the U.S. Senate is to get to the content of Judge Sotomayor’s character and her judicial qualifications, what Alexander Hamilton called “the requisite integrity with the requisite knowledge.”

That will require toughness, not nastiness, from senators on both sides of the aisle. Justice Thomas, who should know, said it well: “A good argument diluted to avoid criticism is not nearly as good as the undiluted argument, because we best arrive at truth through a process of honest and vigorous debate.” So the senators should take their lunch. They have a long day’s work ahead.

Suzanne Fields is an author and columnist.