- The Washington Times - Wednesday, June 3, 2009


In Washington, the clearer a statement, the more certain it is to be followed by a “clarification” when people realize what was said.

The clearly racist comments by Judge Sonia Sotomayor at the University of California at Berkeley in 2001 have forced the spinmasters to resort to their last-ditch excuse, that it was “taken out of context.”

If that line is used during Judge Sotomayor’s Senate confirmation hearings, someone should ask her to explain just what those words mean when taken in context.

What could such statements possibly mean - in any context - other than the new and fashionable racism of our time, rather than the old-fashioned racism of earlier times? Racism has never done this country any good, and it needs to be fought, not put under new management for different groups.

Looked at in the context of Judge Sotomayor’s voting to dismiss the appeal of white firefighters who were denied the promotions they had earned by passing an exam - because not enough minorities passed that exam to create “diversity” - her words in Berkeley seem to match her actions on the bench in the U.S. 2nd Circuit Court of Appeals all too well.

The Supreme Court of the United States thought that case was important enough to hear it even though the three-judge panel on which Judge Sotomayor served gave it short shrift in less than a page. Apparently the famous “empathy” President Obama says a judge should have does not apply to white men in Judge Sotomayor’s court.

The very idea that a judge’s “life experiences” should influence judicial decisions is dangerous and absurd.

It is dangerous because citizens are supposed to obey the law, which means they must know what the law is in advance - and nobody can know in advance what the “life experiences” of whatever judge hears a case will happen to be.

It is absurd because it flies in the face of the facts. It was a fellow Puerto Rican judge on the 2nd Circuit Court of Appeals - Jose Cabranes - who rebuked his judicial colleagues for the cavalier way they dismissed the white firefighters’ case.

On the Supreme Court, the justice whose life story is most like that of Judge Sotomayor - Clarence Thomas - has a very different judicial philosophy from hers.

The clever people in the media and elsewhere are saying one’s background “inevitably” influences how one feels about issues. Even if that’s true, judges are not supposed to decide cases based on their personal feelings.

Justice Oliver Wendell Holmes said he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.

Something else is said by the clever people to be “inevitable.” That is the confirmation of Judge Sotomayor to the Supreme Court. However, it was just a year and a half ago that Hillary Rodham Clinton’s winning the Democratic Party’s nomination for president was considered “inevitable.”

The Republicans certainly do not have the votes to stop Judge Sotomayor from being confirmed - if all the Democrats vote for her. However, that depends on what the people say. It looked like a done deal a couple of years ago when an amnesty bill for illegal immigrants was sailing through the Senate with bipartisan support. Public outrage brought that political steamroller to a screeching halt.

Nothing is inevitable in a democracy unless the public lets the political spinmasters and media talking heads lead them around by the nose.

The real question is whether the Republican senators have the guts to alert the public to the dangers of putting this kind of judge on the highest court in the land, so they will at least have some chance of stopping the next one who comes along.

It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept no less objectivity from a judge.

Thomas Sowell is a nationally syndicated columnist.

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