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Conservatives are understandably chagrined at the nomination of Sonia Sotomayor to replace Supreme Court Justice David Souter. The Following is three very concerning areas where GOP Senators should focus their inquiries.

On the judging front the very first and most important qualification for a Supreme Court Justice has to be their understanding the role of the courts and specifically their role as judges, which is to interpret the statutes and constitutional provisions which are before the Supreme Court and to render justice equally and impartially to all who come before it.

Sotomayer was Captured on tape offering us a glimpse into her views on the role of a Supreme Court Justice:

Um, all of the legal defense funds out there, um, they’re looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law, I know. Um, um — [laughter] — I know. I’m not promoting it, I’m not advocating it, and, I’m … you know. [laughter]

The American people need to be assured that she will not seek to legislate & make policy from the bench but in fact will strictly interpret the statutes and constitutional provisions which are before the Supreme Court & render justice equally and impartially to all who come before it.

And that brings us to the second substantial concern about Sotomayor.  Stuart Taylor writes:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001.

The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor — widely touted as a possible Obama nominee to the Supreme Court — has drawn very little attention in the mainstream media since it was quoted deep inside the New York Times on May 15.

It deserves more scrutiny, because apart from Sotomayor’s Supreme Court prospects, her thinking is representative of the Democratic Party’s powerful identity-politics wing.

Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

Sotomayer clearly is suggesting that the experiences of Latino women, would more often than not, lead them to make better decisions than white males.  The expression of such beliefs in a public speech has to raise concerns about her ability to render justice objectively and her ability to remain impartial, in fact, later in the speech she goes on to raise even more concerns on that front by referring to the cardinal duty of judges to be impartial as:

“a mere aspiration because it denies the fact that we are by our experiences making different choices than others.”

And she goes on to suggested that:

“inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

Clearly these statements raise very serious questions as to Sotomayer’s ability to render an impartial and objective judgement in any case that involves members of different ethnic and cultural backgrounds and should be addressed in her confirmation hearings.

Ricci v. DeStefano

This case will prove to be the most crucial factor in whether or not Sotomayer is confirmed as it ties together all of the issues discussed above and might shed light on their impact on how she has ruled in the past.

Jennifer Rubin points out in her Pajama’s Media article:

This outlook extends beyond a single speech. This philosophy has permeated her work as a dogged advocate for racial Preferences on campus and as an appellate judge as well. She played a critical role in the New Haven firefighter case (Ricci v. DeStefano) which makes clear her views on racial discrimination. In that case she voted with the majority of the Second Circuit to reject the claim of Frank Ricci, a white, dyslexic firefighter, who struggled for a top grade on a promotion exam, only to have the test thrown out because no African Americans achieved a top score.

Her actions raised the ire of her colleague Jose Cabranes (a Clinton appointee) who questioned why Sotomayor’s panel had issued its initial “perfunctory” opinion with no mention of the hot-button constitutional issues which were clearly germane to the case. The case is now before the U.S. Supreme Court. Court watchers at the oral argument opined that the Court seemed ready to reverse the Second Circuit’s decision and thereby deal a blow to Sotomayor’s scheme to deprive Ricci of both his promotion and his day in court.

Even Richard Cohen, hardly a conservative, suggested (before Sotomayor’s nomination) that Ricci is a test of sorts:

Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules — oops, you’re white. Sorry, not what we wanted. As a consequence, it was not racists who were punished but all whites. There is no need to cling to such a remedy anymore. There is, though, every need to retain and strengthen anti-discrimination laws, especially in areas such as fire departments, where racial discrimination was once endemic. Sufficient progress has been made to revert to treating individuals as individuals. After all, it is not some amorphous entity called “whites” who will suffer: It is un-lieutenant Ricci.

[. . .]

Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of race. Obama’s Supreme Court nominee ought to be able to look the New Haven fireman in the eye and tell him whether he has been treated fairly or not. There’s a litmus test for you.

The supreme court is expected to issue their ruling on this case by June before Sotomayer’s confirmation hearings which are scheduled to begin in July.  This case is going to prove to be crucial as it ties together so many questions regarding her views on race, judicial activism, & her capacity for impartiality among others.

Update #1  The Wall Street Journal has obtained recordings of the Ricci v. DeStefano case hearings that provide insight into Sotomayer’s views.

An excerpt:  “We’re not suggesting that unqualified people be hired, the city’s not suggesting that,” she told Ms. Torre. But “if your test is going to always put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that?”

It sounds like she is assuming that the tests were designed to cause certain races to fail or perhaps that they cannot be expected to pass the tests as the others did (which included 1 Hispanic fire fighters and 1 who was dyslexic & hired tutors to help him study for and pass the tests ).

Her question “and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that”  is irrelevant in all reality, who is saying that the city could not seek to update and improve the test in the future?

The fact is the City of New Haven went out of its way to ensure the test was fair (the city hired a firm that specializes in employment tests which were then independently verified to be in accordance with federal law).

There seems to be two disturbing things here, one is that she is arguing that is is OK to discriminate and deny promotions to those who passed the test based on their race solely because no black fire fighters passed it and she assumes the tests to be unfair simply because they didn’t pass the tests, how did the dyslexic fire fighter pass?  How did the Hispanic fire fighter pass?

Which leads to the second disturbing thing here, this line of reasoning seems to suggest that black people lack the ability to study & learn that white people have and hence they can develop a test that only white people can pass, even though in this case, they hired a firm that specializes in employment tests to ensure it’s fairness.

The bottom line is that to say that it is OK to discriminate against white fire fighters by preventing their promotions until the City can develop a test that black people can pass is totally absurd and flies in the face of the very constitution she was sworn to uphold.

Perhaps Sotomayer was not aware of the following:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Update #2 Breaking: Sotomayor Made Same “Wise Woman” Speech In 1990s.  The Plum Line reports:

Here is what she said in her 1994 speech:

“Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.”

So much for President Obama’s spin suggesting that she misspoke and claiming that  if she could she would have chosen different words.  If you look at the context here she is CLEARLY making a statement of disagreement with the notion that both a man and a woman can reach the same conclusion in dueling cases and goes on to say that “a wise woman with the richness of her experience would, more often than not, reach a better conclusion”

So ladies and gentlemen, not only does she think that her Latina heritage will allow her to make better decisions than white males, she also think that her womanhood will allow her to make a better decision than a man would!

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