Tuesday, May 26, 2009

Afterthought re 26 May 2009 Sotomayor Article


I began to write this article very shortly after reading early this morning that, according to the usual suspects, President Obama had selected Judge Sotomayor as his nominee to fill a vacancy on the Supreme Court. Unfamiliar with her record as a judge, I did such background research as I could in several hours, knowing that before my article had been published, there would be numerous others. I expected that some would be enthusiastically in favor of her nomination, that there would be others wildly opposed to it, and that there would be some which could be characterized as offering a sigh of relief which sounded rather like "ho hum" -- pretty much the view I expressed.

I was right. Unfortunately, most of the more exciting articles I read seem to reflect little understanding about how courts and judges function or about about how they should function. That bothers me. I have been in hospital operating rooms only twice (as far as I know) and then under anaesthesia most of the time. Could I reliably critique a surgeon based on something he may have said at a cocktail party or during a speech to a general audience? Based on the extent to which his social views and mine are at odds? Seems unlikely.

According to an article in the National Review -- a publication which I often find well worth reading,

In introducing Sotomayor, Obama said he valued "a rigorous intellect" and "a recognition of the limits of the judicial role," before pronouncing them both "insufficient." A justice must have been tested "by hardship and misfortune," Obama stipulated, so that he has "a common touch and a sense of compassion."

It’s as if he wants a justice who can break the tension in an oral argument about the intricacies of antitrust law with engaging sports banter. The "Would you want to have a beer with him?" test reasonably applies to a politician, but to a black-robed justice charged with interpreting the Constitution? Justice Clarence Thomas is delightful company. Does that make his opinions any better or worse?

That's silly. There is hardly time during an oral argument for anyone to engage in sports banter, and I have known quite adequate judges with whom I would have enjoyed having a beer and quite inadequate judges with whom having a beer would have been, well, "torture." Rush Limbaugh's comments appear to be even further off the mark. I very rarely listen to Mr. Limbaugh, but occasionally read some of his stuff. Sometimes, it amuses me and sometimes I agree with his basic views. Not this time.

Another writer, discussing the Ricci case, said:

In a background briefing at the White House this morning, Senior Administration Officials gave clues as to how they'll handle attacks based on this case. During her vetting, White House officials were very careful to avoid asking her about the Ricci case because, depending on both the Supreme Court's actions and her confirmation, it might end up before her again, one official told reporters.

It seems very unlikely that she will participate in a future Supreme Court decision on the same matter, since (a) the Supreme Court will more than likely decide the Ricci case before Judge Sotomayor could possibly be seated on the Court and (b) if not, she would almost certainly recuse herself.

I don't much care whether Judge Sotomayor is Hispanic, Oriental, Black, White, female, male, Democrat, Republican, liberal, conservative, Roman Catholic, Protestant, Agnostic, Atheist, lesbian, from a well-off WASP family, put herself through college and law school unassisted by her parents, or whether she is "pro-choice" or "pro-life." Nor do I much care whether I agree with her perceptions of life, the universe and everything. Nor do I much care whether, if I were the President, I would have chosen someone quite different; I probably would have. We have a President, for whom I do not much care; he made his selection as was his function and, at this point, I can find no valid basis for the Senate to refuse to confirm it.


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