- The Washington Times - Thursday, May 28, 2009

ROOSTING CHICKENS

“In a previous Forbes column, I decried President Barack Obama’s insistence that empathy would weigh heavily in the scales when it came to his next Supreme Court nominee,” Richard A. Epstein writes at www.forbes.com.

“And reading the arguments that were put forth to justify the nomination of Sonia Sotomayor of the Second Circuit to the Supreme Court, it appears that all the bad chickens have come home to roost,” said Mr. Epstein, a law professor at the University of Chicago.

“Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. Instead, the tag line for this appointment says it all. The president wants to choose ‘a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.’

“Obviously, none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.”

RULE OF LAWYERS

“It’s not the rule of law, it’s the rule of lawyers: That’s the central message conveyed by President Barack Obama’s nomination of Sonia Sotomayor, a judge of the Second Circuit federal appeals court, to replace retiring Justice David Souter on the U.S. Supreme Court next October,” Andrew C. McCarthy writes at National Review Online (www.nationalreview.com).

“Obama and the lawyers in his administration are fond of invoking the rule of law. Yet that golden standard stands on the conceit, honored more in the breach than in the observance, that ‘we are a nation of laws, not of men.’ It holds that there is an objective corpus of law - of the community’s reasoned consensus, shorn of passion, fear or favor - under which we’ve agreed to be governed and to which those chosen to represent us owe their fidelity. It’s a nice ideal. Increasingly, though, our real governing standard is the one made infamous by the legendary litigator Roy Cohn: ‘Don’t tell me what the law is. Tell me who the judge is.’

“Our ideal of judging was perhaps best explained by John Roberts during his 2005 confirmation hearings. The judge is like an umpire, Roberts mused. The umpire calls balls and strikes; he doesn’t design or alter the rules of the game. That’s how it’s supposed to work. The judge’s courtroom is the level playing field where even the visiting team can win if the law - the objective law - is on its side. Sure, the crowd and the local paper will root, root, root for the home team. The rules, however, don’t have a rooting interest. Justice is blind. The umpire is there to see that justice is done - not manufactured.

“The president doesn’t view the world that way. He wants the umpire to pick winners and losers, not simply to preside over a fair fight - ‘fair,’ in this context, meaning a fight under rules agreed upon before the game gets started.”

ITCHING FOR A FIGHT

“Put on your seat belts,” Robert B. Reich writes in a blog at talkingpointsmemo.com.

“Many Republicans have been itching for this fight. They figure if they can make Sonia Sotomayor appear ‘too liberal,’ ‘too activist’ or ‘intemperate’ - and cause Obama to withdraw her nomination, or if they can defeat her outright - they can slow the Obamomentum that’s leading to universal health care, cap-and-trade, more spending on education, and higher taxes on the rich,” said Mr. Reich, who served as labor secretary in the Clinton administration.

“This would also give them a crack at winning back a number of seats next November, which they know they can’t win if their major issues are torture and taxes and if their major spokesmen are Dick Cheney and Rush Limbaugh.

“But if they choose to vilify Sotomayor, Republicans take a huge gamble. They could lose even more women and Hispanic voters in 2010 and beyond. And they could alienate even more independents already turned off by the Republican ‘just-say-no’ approach to almost everything.

“Besides, it will be hard for Republicans to pigeonhole Sotomayor. Although as an appellate judge she has sided with defendants, inmates, convicted felons, and environmentalists, she has also taken decidedly conservative stances.

“In 2002, she ruled against an abortion rights group that claimed the so-called ‘Mexico City Policy’ prohibiting U.S. funding for foreign groups performing or supporting abortion services violated their First Amendment rights. She reasoned that the government is ‘free to favor the anti-abortion position over the pro-choice position.’ In a 2004 case she ruled in favor of anti-abortion protesters who claimed a city had improperly trained police officers who allegedly used excessive force on them. And she has ruled against a number of minority plaintiffs in discrimination cases.”

NO SURE THING

“Don’t count Sonia Sotomayor as one of the justices of the Supreme Court quite yet,” Fred Barnes writes at www.weeklystandard.com.

“Yes, the odds of her winning confirmation as the first Hispanic woman on the court are almost prohibitive, especially since Democrats have an overwhelming majority in the Senate. But the odds are 90 percent, maybe 95 percent - but not 100 percent,” Mr. Barnes said.

“So it’s not over yet. High court nominees who look unassailable on the day they’re nominated sometimes crash and burn even before they’re voted on. And that includes nominees with more impressive credentials than Sotomayor. …

“Things turn up. No matter how extensively an administration investigates a nominee, it can’t look into everything. Meanwhile, the national visibility of a Supreme Court nominee, like that of a presidential candidate or a Cabinet pick, has a way of bringing out damning information from detractors who otherwise wouldn’t get involved.

“There may be nothing troubling in Sotomayor’s past, but we don’t know for sure.”

• Greg Pierce can be reached at 202/636-3285 or [email protected] .com.

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