- The Washington Times - Sunday, May 31, 2009

ANALYSIS/OPINION:

COMMENTARY:

Last month, Jeffrey Rosen, legal affairs editor for the liberal journal New Republic, interviewed former clerks for judges on the U.S. 2nd Circuit Court of Appeals, on which Judge Sonia Sotomayor has served since 1998.

She is “not that smart and kind of a bully on the bench,” one former clerk told Mr. Rosen. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue,” another said.

“I’ve read about 30 of her opinions,” said George Washington University constitutional law professor Jonathan Turley, a Democrat, talking to MSNBC’s David Shuster. “They are notable in one thing, and that is a lack of depth.”

“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 knowledge of the law,” said University of Chicago law professor Richard Epstein.

President Obama had little to say about Judge Sotomayor’s judicial ability and temperament when he announced Tuesday that he was nominating her to replace Justice David H. Souter, who is retiring. Mr. Obama praised her “compelling personal story” and her “empathy” on the bench.

Judge Sotomayor’s “compelling personal story” is a better qualification for being a guest on “The Oprah Winfrey Show” than for being a Supreme Court justice. Her “empathy” - a euphemism for bias - should be a disqualification.

Empathy for particular groups is incompatible with the concept of equal justice under law. The job of a judge is to apply the law fairly, not to tilt the scales of justice in favor of one party or another.

Justice Oliver Wendell Holmes was noted for his judicial ability and temperament. Columnist Thomas Sowell noted that after Holmes had voted in favor of Benjamin Gitlow in the 1925 case of Gitlow v. New York, he told a friend he had just voted for “the right of an ass to drool about proletarian dictatorship.” (Mr. Gitlow, a socialist, had been charged with “criminal anarchy.” The Supreme Court ruled his arrest violated his right to free speech.)

“I loathed most of the things in favor of which I decided,” Holmes said on another occasion. He ruled as he did because a judge’s job is “to see that the game is played according to the rules whether I like them or not.”

Under our system, it’s the job of legislatures to make the rules, the job of judges to apply them. However, Judge Sotomayor apparently thinks judges have the right to substitute their opinions for those of lawmakers. “The court of appeals is where policy is made,” she said at a seminar at Duke University in 2005.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” Judge Sotomayor said in a speech in Berkeley in 2001.

“Invert the placement of ‘Latina woman’ and ”white male’ and have a conservative say it. A career would be finished,” noted former Bush aide Karl Rove.

Despite her shortcomings, Judge Sotomayor is all but certain to be confirmed. And for conservatives, that isn’t so bad. She’ll likely be a 100 percent liberal vote, but she’s replacing a 100 percent liberal vote.

What the former clerks to whom Mr. Rosen talked wanted was a liberal with the intellectual firepower to challenge Justice Antonin Scalia. Judge Sotomayor isn’t that.

Former Bush speechwriter David Frum noted on his blog that the swing vote on the court, Justice Anthony M. Kennedy, a Reagan appointee, has been drifting leftward in part because of his irritation at Justice Scalia’s often acerbic manner.

Because any Obama nominee would be liberal, conservatives should hope he chooses a personally obnoxious liberal, one who will “irritate Kennedy and push him careening back rightward,” Mr. Frum said.

“If Jeffrey Rosen’s reporting is correct, Judge Sotomayor was almost unanimously disliked by her colleagues on the 2nd Circuit and even more by their clerks,” Mr. Frum said. “So who could be better?”

Jack Kelly, a syndicated columnist, writes on national security matters for the Pittsburgh Post-Gazette.

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