If you have been following the major news outlets this week (Fox News included), you know a few things about the judge President Obama has nominated for the Supreme Court:
- She is a She.
- She is Hispanic.
- Republicans had better watch out if they question anything about her.
Republicans have tripped over themselves saying they will not criticize her based on her sex or ethnic background. I believe there are a few good reasons to deny Judge Sotomayor the highest court in the land. Lady Justice is supposed to be blind. If my criticisms would be valid against a white Republican, then they are valid against Sonia Sotomayor.
Her previous decisions do raise some real question marks, specifically her decision in Ricci v. DeStefano. The city of New Haven, Connecticut uses an exam to qualify firefighters for promotions. This test is examined ahead of time to make sure it is "race neutral" and it is administered due to an agreement between the city and the union. Traditionally, firefighters who pass the examine are promoted. On one specific occasion, 16 white firefighters and one Hispanic firefighter passed the exam. They were not promoted because no black firefighters passed the test. The city decided they wouldn't promote anyone if there were no successful black applicants. The firefighters sued believing they had been the victims of racism. The lower court dismissed the case, and Judge Sotomayor heard it as an appeals judge and agreed with the lower court. In the coming weeks you will hear more about this case for three reasons: the appeal of the case is going to be decided by the Supreme Court in June; the decision, coupled with other comments by Sotomayor, does not pain a flattering picture of the Judge; and another Hispanic Judge, Jose Cabranes, wrote an opinion questioning Sotomayor's decision.
She has made some very questionable remarks, in public and on the record, regarding her judicial philosophy. This is important because her comments are fair game in confirmation hearings. She shouldn't be asked how she will decide on gay marriage, abortion, or school prayer, but she can be asked what she meant when she said, "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." President Obama and Secretary Gibbs have both tried to clarify these remarks.
Perhaps even more troubling are her remarks in 2005 stating that policy is made at the appeals court. Policy and law are not made in court. State and Federal Legislators make law, not judges. Judges interpret that law. They decide what is and what isn't out of bounds. They don't decide where that foul line is.
Republicans should challenge Judge Sotomayor on these points, and others that may come out over the next few weeks. Democrats and the Media would do well to look over these issues as well. Perhaps they should stop telling Republicans what is fair criticism, and look at Judge Sotomayor's record.