- The Washington Times - Saturday, June 27, 2009

ANALYSIS/OPINION:

Back when I was on the receiving end of racial discrimination, it was to me not simply a personal misfortune, or even the misfortune of a race, it was a moral outrage. But not everyone who went through such an experience sees it that way.

When it comes to subjecting other people to the same treatment in a later era, some have no real problem with that. They see it as payback.

One of the many problems of the payback approach is that many of the people who most deserve retribution are no longer alive. You can take symbolic revenge on people who look like them, but this removes the whole moral element. If it is all right to discriminate today against individuals who have done you no harm, then why was it wrong to discriminate against you in the past?

These are not just abstract questions. These are serious, real world questions, especially when considering someone to be given a lifetime appointment to the Supreme Court of the United States.

Some judicial nominees have had racial bias attributed to them, despite their years of unwavering support of civil rights for all. Judge Robert H. Bork and Judge Charles W. Pickering are striking examples. But the current Supreme Court nominee is the first in decades to explicitly introduce racial differences in her own words, along with the claim that her own racial or ethnic background makes her better qualified.

Attempts to claim that Judge Sonia Sotomayor’s words were isolated remarks - a slip of the tongue “taken out of context” - have now been discredited by further information showing she has repeatedly expressed the same ideas, in virtually the same words, at other times and in other contexts.

Moreover, her deeds - including years of participation in group identity politics - are perfectly consistent with her words. So, too, was her vote on the U.S. 2nd Circuit Court of Appeals to summarily dismiss the appeal of white firefighters who did not get the promotions they had earned by passing a required test because not enough minority firefighters passed to provide racial diversity.

The Supreme Court of the United States found that appeal worth hearing, even if Judge Sotomayor did not.

The warm and genial image of Judge Sotomayor presented on television, during President Obama’s introduction and afterward, is in sharp contrast with what attorneys who have appeared before her in court have said.

A poll of such attorneys showed them rating her worse than other judges in her treatment of those who appeared before her. A tape of Judge Sotomayor’s abusive behavior in court backed up the attorneys’ picture. It is also consistent with someone in payback mode.

A confirmation decision on a Supreme Court nominee is not like deciding whether someone is innocent or guilty of a crime. It is right in criminal cases that the burden of proof is on those making an accusation and that the accusation be proved “beyond a reasonable doubt.”

Judge Sotomayor is not in jeopardy of either criminal or civil penalties. So there is no reason why either the criminal standard or proof “beyond a reasonable doubt” or the civil standard of “the preponderance of evidence” is required for determining whether she is the right person to be given a lifetime appointment to the highest court of the land.

It is hundreds of millions of Americans - current and future - whose fundamental rights are at stake whenever any nominee is being considered for the Supreme Court of the United States. It is the American people as a whole who are entitled to the benefit of the doubt.

One of those fundamental rights was taken away just four years ago, when a 5 to 4 decision by the Supreme Court gave local politicians the right to seize your home or business and turn the property over to some other private party they favor. Just one vote on the Supreme Court can make a huge difference.

We have been told endlessly about Judge Sotomayor’s biography and her symbolism as a Hispanic woman. Is that enough to risk millions of other Americans’ fundamental rights?

Thomas Sowell is a nationally syndicated columnist.

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