- The Washington Times - Saturday, May 30, 2009


The nation’s capital loves nothing so much as the prospect of a good battle over a Supreme Court nominee. Endless hours are devoted to speculation about the chances of Senate confirmation, and every stone on the candidate’s path through life will be turned over by the press, opposing forces and just plain acquaintances who want a moment in the spotlight.

However, barring the discovery of something extraordinarily unsettling in Judge Sonia Sotomayor’s background, and after nitpicking her past remarks off and on the bench, those who have turned so many past nominations into blood baths are going to be sorely disappointed. The first Hispanic to be selected for the nation’s highest judicial honor should be awarded a relatively easy approval if for no other reason than the sheer advantage in numbers held by her Democratic supporters.

Republicans and their party’s conservative base are pretty much toothless in this process, notwithstanding Rush Limbaugh’s ranting and former House Speaker Newt Gingrich’s demand that she withdraw because she is a “racist.” They’re simply caught between those numbers and the dangers of an overly aggressive opposition further eroding their chances for a comeback by angering the country’s largest minority.

Hispanics, unlike blacks, don’t bloc-vote, but challenging the first one of theirs to achieve this lofty status is bound to stimulate unification. Blood is thicker than water, after all. So why take the risk in a game almost surely decided?

Besides, does anyone believe President Obama would or could nominate anyone who would satisfy Mr. Limbaugh or Mr. Gingrich? They’re just compulsively unable to resist going through the motions.

Actually, Judge Sotomayor’s nomination was a good one from the perspective of this president. Mr. Obama had left clues around for weeks about what he wanted in a high-court candidate - liberal inclinations, intellect, common sense and life experience with the practical needs of most Americans. Add to that her prosecutorial background and long tenure on the federal bench at both the district and circuit level, and her profile was closest to the president’s specifications.

Her exalted academic record, both as an undergraduate and in law school, certifies her intellectual credentials. In some ways, her unsheltered, underprivileged upbringing seems refreshingly far less sterile than those of many of her peers. She persevered against all odds. She is divorced and has no children. She likes beer and baseball and - for a time, at least - cigarettes. An engagement after her divorce seems to have fallen through. In other words, she is not just some bloodless judicial wonk.

Conservatives will try to paint her as an activist rather than a constructionist and one whose ethnicity too often influences her thinking. The most prominent example involves firefighters in New Haven, Conn., who have charged her with reverse racism in a matter now before the court she is about to join. Judge Sotomayor voted to uphold a lower court’s decision to deny a lawsuit by white firefighters charging they were discriminated against by the city when it pitched out a promotions exam because no blacks qualified for advancement.

Her decision in this case, which many expect to be overturned before she joins the high court, is clearly troublesome. It is difficult to interpret this as anything but deprivation of promotion based solely on race. It appears totally unlikely to scuttle her nomination, but it has the potential of resonating with many Americans. One can only wonder what she and her fellow appeals court judges would have ruled had only blacks qualified for the promotions.

On the other hand, Judge Sotomayor dissented in a case in which the appeals court ruled the New York Police Department could fire an employee who responded to an appeal for charitable contributions with mailings of racist and bigoted material without violating his First Amendment rights. She strongly disagreed with the firing, although she found the employee’s speech “offensive, hateful and insulting.” She said the court should not ignore “the centrality of the First Amendment freedoms in our lives” simply because of the language or a potential political backlash. Go figure.

This nomination might not produce one of those television spectaculars, but it certainly is an interesting one.

Dan K. Thomasson is former editor of the Scripps Howard News Service.

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