Diversity Trumps Equal Justice for Obama’s Racist Supreme Court Pick, Sotomayor

“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.”

By now most everyone has heard about President Obama’s pick to be the next justice of the Supreme Court, Sonia Sotomayor.  Many of you have probably even heard some of the controversy surrounding the pick.  After talking with a friend the other night, however, it became obvious to me that not everyone has heard the complete truth.

The quote listed at the top of this article is a now famous quote from Sonia Sotomayor.  It’s from a speech she gave in 2001 titled, “A Latina Judge’s Voice.” The first time I heard the quote I immediately called it out for what it is – racist.  A lot of other conservatives have since done the same and are now being rebuked by the media and members of the liberal establishment who simply cannot fathom the concept of how anything spoken by a minority could possibly be labeled “racist.”  But racist it is.

To quell some of the controversy President Obama and his Press Secretary, Robert Gibbs, have since admitted that the words she spoke were unacceptable (though they would never call them racist).  However, Obama continues to support the ideology Sotomayor holds that caused her to speak those words in the first place.

Sotomayor’s supporters have argued that the quote was “taken out of context.” President Obama and the White House acknowledged that Sotomayor made a poor choice of words but Obama made the suggestion that “I’m sure she would have restated it,” if she had it all to do over again.  Unfortunately, the President and the judge’s supporters ignore the facts.  An even earlier speech from 1994 has been discovered in which Sotomayor says almost the exact same thing.  It’s impossible to argue that she misspoke.

The sad truth is, Sonia Sotomayor has always practiced race-based justice and will continue to do so if appointed to the Supreme Court.  As even the The New York Times reported on May 29, the salient cause of her career has been advancing persons of color, over whites, based on race and national origin.

Judge Sotomayor, whose parents moved to New York from Puerto Rico, has championed the importance of considering race and ethnicity in admissions, hiring and even judicial selection at almost every stage of her career — as a student activist at Princeton and at Yale Law School, as a board member of left-leaning Hispanic advocacy groups and as a federal judge arguing for diversity on the bench.

Sonia Sotomayor believes in, preaches and practices race-based justice.  Her burying the appeal of the white New Haven firefighters, who were denied promotions they had won in competitive exams, wasn’t even a difficult decision for her (read about that case here).  Sotomayor alone wrote the Circuit Courts 134 word opinion in that case, summarily denying the appeal.  And she did so without addressing any of the constitutional issues the case raised.  In Sotomayor’s world, equal justice takes a back seat to racial justice.

The Arguments for Judge Sotomayor

One argument I’ve heard in support of Sotomayor is that she’s only doing what white men have been doing for years.  This argument, however, is not a valid excuse.  If a black person were to enslave a white person they certainly couldn’t use the excuse that white people once enslaved black people so it’s ok.  We’re not bound by the mistakes of the past.  In fact, we’re bound to learn from the mistakes of the past.  I would never recommend, nor would any other reasonable person recommend, a racist white man to the Supreme Court if we knew in advance that he would ultimately judge based on his prejudice.  With Sotomayor, however, her views aren’t even admitted to be prejudicial.  Her racism is called “life experience” and “empathy” and is celebrated as one of her winning traits. 

Some argue that what she really meant by her, now famous, statement was that she would be able to use all of the experiences she has gone through in her life as a Hispanic woman of modest upbringing (that a white man couldn’t possibly have gone through – one must assume) to somehow be able to view the given situation in a different, more empathetic, light and be able to pass judgment that is somehow superior to the judgment a white man who hasn’t gone through her experiences would be able to reach.  Still sounds racist to me, but that is the argument.

The problem with this argument is that it flies in the face of the basic foundation of our legal system.  Judicial impartiality is an absolute integral part of the justice system in this nation.  It’s fundamentally embedded in our most basic concepts of justice.  But how can someone who says they will use their own unique perspective and their own empathies to make a decision even claim to be impartial?

And make no mistake, Sotomayor is fully aware that the way she wants to make her decisions has no basis in the current legal system.

Speaking of Sotomayor and her “A Latina Judge’s Voice” speech, Steve Chapman at the Chicago Tribune said this:

Her allies have a point. Anyone who reads the whole speech will indeed find that her comment wasn’t as bad as it sounds. It was worse.

What is clear from the full text is that her claim to superior insight was not a casual aside or an exercise in devil’s advocacy. On the contrary, it fit neatly into her overall argument, which was that the law can only benefit from the experiences and biases that female and minority judges bring with them.

She clearly thinks impartiality is overrated. “The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others,” she declared, a bit dismissively. She doesn’t seem to think it’s terribly important to try to meet the aspiration.

That’s apparent from the context. She said, “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging.”

In more succinct terms: Sotomayor does not mind, and may even prefer, that the outcomes of cases are affected by the gender and race of the judge (at least when the judge is not white and male).

The Kind of Judge President Obama is Looking For

Of course, none of Sotomayor’s views are particularly a problem for Obama.  Someone who asserts that their ethnicity, race and gender would make them a better judge over a judge from a different background is pretty much what he’s said he wants all along.  Here is how President Obama explained his criteria for appointing judges earlier this year:

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criterion by which I’ll be selecting my judges.”

With these words Obama, a trained lawyer, shows either his ignorance of the law or his complete disdain for our justice system.  Even the most simple among us understands the concept of justice.  We know that the job of a judge is to enforce the rule of law, not the rule of empathy.  For if even one judge begins to substitute his or her personal experiences for the law, the law becomes what he or she wants it to be, and the entire justice system collapses. 

The Destruction of the American Judicial System

President Obama and Judge Sotomayor want to turn the American judicial system into some kind of racial spoils system where whoever is the most downtrodden or can prove they are the greater abused minority will triumph in court.  They apparently want a system where personal guarantees of freedom and freedom from government oppression only applies if you aren’t a white adult male. 

If you think I’m being too harsh then explain to me how else I could possible interpret Judge Sotomayor’s words and actions.

What we must realize is that one group’s “empathy” is necessarily another group’s “injustice.”  When the rule of law is thrown out and every group is treated differently depending upon how their situation is perceived by the judge, there can be no true justice.  Under the law you may feel sorry for one group (have empathy for them), but it wouldn’t matter if they had broken the law – the law is the law.  In Sotomayor’s court, however, if you feel sorry for a group, perhaps the law should be bent to accommodate them.  This sounds great if you’re the group who is being accommodated.  Right now I’m sure there are plenty of Hispanics and other minorities who think that Judge Sotomayor’s ideas are valid and maybe they even agree with her (maybe the white man has it coming?).  But be warned, if you or your “group” is on the winning side today, what happens in the future if another judge comes along who “empathizes” with the opposing group (white male adults perhaps?)?  Lose in that courtroom and it starts to sound unfair, doesn’t it?

Forget Qualifying as a Racist, Does Sotomayor Even Qualify as a Juror?

It’s interesting to note that Sotomayor’s words would actually prevent her from serving on a jury in courtrooms all across this country.

You see, in every single trial, American citizens who show up for jury duty are instructed by the presiding judge that they will have a sworn obligation to decide cases objectively — without fear or favor.  As Andy McCarthy says in his article in The National Review:

If a person is unwilling or unable to do that, if the person believes he or she has a bias or prejudice, especially one based on a belief that people are inferior or superior due to such factors as race, ethnicity, or sex, the person is not qualified to be a juror. Indeed, prospective jurors are told that they are not qualified if they harbor even the slightest doubt about their ability to put such considerations aside and render an impartial verdict. If the judge or the lawyer for either side senses bias, the juror is excused “for cause” — the parties are not even required to use their discretionary (or “peremptory”) jury challenges to strike such a juror; rather the judge makes a finding that the juror is not fit to serve.

McCarthy goes on to point out that the impartiality doesn’t end when the prospective jurors are chosen to serve on the jury either.  In fact, before a jury retires to deliberate a verdict they are given very specific instructions by the judge.  Here is the standard instruction:

You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone. Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them….  Perform these duties fairly and impartially. Do not allow sympathy, prejudice, fear, or public opinion to influence you. You should not be influenced by any person’s race, color, religion, national ancestry, or sex.

How far do you think Judge Sotomayor would get in this process if she were to show her true colors to the judge and the lawyers in a trial?  Again Andy McCarthy makes a great point:

Let’s say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to “transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”; and that there are “basic differences” in the way people “of color” exercise “logic and reasoning.” If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?

I find it difficult to understand how someone who would be unqualified to serve on a jury could possibly sit in judgment of others as a Supreme Court Justice.  If her words would prevent her from serving as a jury member should we not take those words into consideration when deciding whether or not she is fit to serve on the Supreme Court?

Not surprisingly, a look at the oath that she would have to take for this job might actually cause Judge Sotomayor some problems.  According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.”

There is a reason Lady Justice is usually depicted wearing a blindfold.  The blindfold indicates that justice is (or should be) meted out objectively, without fear or favor, regardless of identity, power, or weakness: blind justice and blind impartiality.  The motto over the entrance to the very Supreme Court where Sotomayor hopes to one day work reads “equal justice under the law.”  There is no indication of a greater justice for the poor and less for the rich – no suggestion that certain races should receive more justice while others receive less.

If confirmed by the Senate, Judge Sotomayor will be asked to raise her right hand while placing her left hand on a Bible and she will be asked to recite the oath above.  How, in all honesty, could she possibly take such an oath?  Is there anyone reading this that thinks for one moment that even if she did take the oath she would have any intention of keeping it?

The Proper Role of a Judge

In 2001, just a few months before Sonia Sotomayor made her “A Latina Judge’s Voice” speech claiming the decision making superiority of a Latina woman over a white man, Justice Clarence Thomas delivered a landmark address on judicial impartiality which defines clearly what the proper role of a judge, and especially a Supreme Court justice must be:

“Be Not Afraid”
An Address by Justice Clarence Thomas
American Enterprise Institute, Washington, D.C.
February 13, 2001

…Impartiality is central to judging and to being a judge. When deciding cases, a judge’s race, sex, religion are all irrelevant. A judge must push these factors to one side, in order to render a fair, reasoned judgment on the meaning of the law. A judge must attempt to keep at bay those passions, interests, and emotions that beset every frail human being. A judge is not a legislator, for whom it is entirely appropriate to consider personal and group interests. The ideal of justice is to be blind to such things.

…The law is not a matter of purely personal opinion. The law is a distinct, independent discipline, with certain principles and modes of analysis that yield what we can discern to be correct and incorrect answers to certain problems.

When struggling to find the right answer to a case, judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality. The greater the room for judicial discretion, the greater the temptation to write one’s personal opinions into the law. This is especially important at the Supreme Court, where many of the usual limitations on judicial discretion, such as authority from a superior court or stare decisis, either do not exist, or do not exist with the same strength as with other courts. Hence, other doctrines and principles designed to narrow discretion and to bolster impartiality assume greater significance for the Court.

The “Justice” We Can Expect From a Justice Sotomayor

I briefly mentioned above the case of the white New Haven firefighters.  In a recent article, Newt Gingrich gives us a few more details:

Nowhere is the injustice that results from judging Americans as members of groups and not as individuals more evident than in Judge Sotomayor’s ruling in the case involving Frank Ricci, a New Haven, Conn., firefighter.

Ricci quit his second job and studied 13 hours a day in 2003 for a civil service exam he hoped would earn him a promotion to lieutenant in the New Haven Fire Department.  And when Ricci took the exam, all his hard work seemed to pay off.  He got one of the highest scores.  But because no African-Americans scored high enough on the exam to be promoted, the city of New Haven threw out the results of the test and promoted no one.

Frank Ricci, 16 other white firefighters, and one Hispanic firefighter sued the city, claiming they were denied promotions on the basis of their race.  A district judge dismissed the case, and a three- judge panel of the Second Circuit Court of Appeals affirmed the dismissal.  One of those judges was Judge Sotomayor.

The Supreme Court is currently hearing the Ricci case, and a ruling is expected next month, likely in the midst of hearings on Judge Sotomayor’s nomination.

Legal experts expect the Supreme Court to reverse Judge Sotomayor’s ruling.  But however the high court rules, this is a moment for America to have a full, honest and open debate, not just about the impartiality of our judges, but about equal justice before the law for Americans like Frank Ricci.

Patriotic Citizens Must Oppose Sotomayor’s Confirmation

I’m certain that many Democrats will support Sotomayor’s nomination for the Supreme Court if for no other reason than President Obama made it.  The truth is, with the Democrats having 59 votes in the Senate, it seems unlikely Republicans alone would be able to stop the confirmation no matter what they do.  If the Democrats stick together and vote a straight partisan vote, without regard for her credentials, Sotomayor will most likely become a Supreme Court Justice.

But so would any other nominee.

So I ask you, is Sonia Sotomayor really the kind of person the Democrats (liberals) want on the Supreme Court.  I ask those of you who consider yourself liberal and maybe voted for President Obama this question.  Is Sonia Sotomayor really representative of the kind of change you wanted in Washington when you cast your vote for Obama?  Read this article again and tell me that you honestly believe she is the best possible candidate for the job.

While I know that Sotomayor will probably be confirmed if all the Democratic Senators vote for her that doesn’t mean that we, the people, must support this nomination.  If you believe justice, true justice, impartial justice, I urge you to oppose this nomination.  Call or write your Senators and tell them you do not support Sonia Sotomayor’s inappropriate and un-American views on justice and impartiality.  Tell them President Obama can do better.

The liberals are going to get a nominee confirmed for the Supreme Court, there’s no denying that.  But it doesn’t have to be this nominee nor should it be this nominee.