My Questions For Sotomayor—Will Republicans Dare Ask Them?
The Senate Judiciary Committee hearings on
Obama`s Supreme Court nominee
Sonia Sotomayor are currently scheduled to begin this
Monday, July 13.
The Democrats want to rush Sotomayor
through with merely some
celebrations of her Hispanicness, and no tough
questioning. For example, these will be the first Supreme
Court nominee hearings in decades that
National Public Radio, that
adjunct of the Obama Administration, won`t broadcast
Republican Senators have been talking about trying to
postpone the hearings until September, claiming that they
need more time to review her complex record.
reality, Sotomayor`s record isn`t all that complicated. It
consists of two parts.
legal opinions are those of a grind: not brilliant, but
not so lame that you couldn`t imagine her as one of the
dimmer bulbs on the Supreme Court.
Of course, the problem with being on the
Court of Appeals (like
Sotomayor at present) is that if you indulge your political
biases too much, you`ll get
embarrassingly overruled by the Supreme Court (as
Sotomayor got overturned on the
Ricci v. DeStefano
Once you are on the
Supreme Court, however, you are (effectively)
law. So past opinions you`ve written are of less
predictive value about how you will rule when unfettered
than your off-hours volunteering.
is the second part of Sotomayor`s record:
an extraordinary amount of her non-judicial efforts
to demanding ethnic preferences to benefit her group
and—need it be said?—herself.
preferences have been very, very good to Sonia Sotomayor.
And it would be only natural for her to be very, very good
to preferences when she`s on the Supreme Court.
Obviously, Sotomayor is going to be approved. The Democrats
have 60 Senators and she only needs 50.
And many Republican Senators would no doubt like to fold
quietly, what with, as we are constantly told in the media,
Hispanics accounting for nine percent of the vote according
exit polls in 2008. (Actually, the Hispanic share of the
vote in 2008 turned out to be, according to the gold
standard Census Bureau survey of 50,000 households, only
7.4 percent, but who cares about reality?)
tactical issue for the Republicans, however, is whether they
are going to forfeit all the political mileage they could
get out of the Ricci
victory—in which the Supreme Court brusquely junked
Sotomayor`s decision upholding corrupt racial discrimination
white firemen in New Haven.
The Main Stream Media, of course, has
every intention of shoving
Ricci far down the
Memory Hole. The only way to remind the public of what is at
stake is to make Ricci
the central focus of the Sotomayor hearings.
strategic issues for Republicans are manifold:
going to acquiesce in the growing assumption in the press
that minorities, such as Obama and Sotomayor, are beyond
criticism on anything related to race? If so, what does that
bode for the future of the GOP?
they forego their best opportunity to point out that Obama
post-racial uniter of David Axelrod`s imagination, but
is merely Sotomayor with a more
they use the high unemployment rate to go on the offensive
against racial preferences, especially against preferences
to offer some advice and questions for the Senators.
go easy on the excruciatingly boring questions about
The Obama Administration will no doubt
have provided Judge Sotomayor with test-marketed talking
points. Anyway, the public doesn`t much care about judicial
philosophy in the abstract. It cares about philosophies when
to injustices done to actual people, such as what
Sotomayor authorized be done to Ricci and his colleagues.
Second, you don`t have to ask Sotomayor
the toughest questions about the
Ricci case. The
media is all prepared to raise a stink about evil white male
Senators being unchivalrous and insensitive being toward a
Latina. But, fortunately, there`s a sleazy white male
stand-in for Sotomayor.
Ricci v. DeStefano humanly vivid to the public by
calling as witnesses both parties: the victim-turned-winner,
fireman Frank Ricci, and the victimizer-turned-loser, New
John DeStefano, Jr.
the eight-term politician (who happened to be a Democrat)
have it with both barrels for his slimy acts of racial
discrimination against Ricci.
An argument among three Italian-American
guys—Ricci, DeStefano, and Alito—is less easy for the media
to spin along its
"Who? Whom?" lines. So, for once, people will be
allowed to think simply about principles of justice.
It won`t be hard to show that, in
is just another word for DeStefano`s
Here are my questions to ask the
you`ve worked out on DeStefano.
Obviously, she`ll bob and weave around most of them,
refusing to answer on the usual specious grounds employed by
past nominees. But these questions would be worth asking for
their own rhetorical sake:
Much as Chief Justice John Roberts asked during
oral arguments over Ricci… Can you assure us, Judge
Sotomayor, that your decision in
Ricci for the City
of New Haven would have been the same if
firefighters scored highest on this test in disproportionate
numbers, and the City said we don`t like that result, we
think there should be more whites on the fire department,
and so we`re going to throw the test out?
On the South Wall of the
Supreme Court Building`s courtroom are carvings of the
"great lawgivers of history." The second earliest lawgiver depicted
Hammurabi, king of Babylon, who is honored for carving
the laws in stone and putting them up in public—which meant
that even the king couldn`t change the laws after the fact
to suit his convenience. Why should Mayor DeStefano enjoy
the privilege that King Hammurabi denied himself: to see
what the final score turned out to be,
then change the
rules of the game?
In the Obama Administration`s friend of the court brief to
the Supreme Court on the Ricci case, the Obama Administration called for your decision for
summary judgment in favor of Mayor DeStefano to be
overturned and the
Ricci case to be remanded to local district court for
retrial on the facts. Why did you vote for a more extremist
outcome than the Obama Administration later called for?
Chief Justice Robert s recently
wrote, "[t]he way
to stop discrimination on the basis of race is to stop
discriminating on the basis of race." Do you agree?
Here`s a guest question from
Slate and the
Yale Law School about your terse judgment in
"The problem for
Sotomayor, instead, is why she didn`t grapple with the
difficult constitutional issues, the ones Cabranes pointed
to. Did she really have nothing to add to the district court
opinion? In a case of this magnitude and intricacy, why
would that be?"
primary point of our civil rights laws to protect minorities
or to protect individuals of all races?
You have described yourself on
video as "a
product of affirmative action" and an
baby" and that it is
"critical that we
promote diversity." Considering your often-expressed
passionate views on the topic and personal self-interest in
promoting ethnic preferences, how could Frank Ricci have
even-handed, colorblind justice from you?
Yes, but, according to the Supreme Court, Frank Ricci didn`t
get justice from
you, now did he?
realize you resent these questions, but aren`t doubts about
racial bias inevitably created by the act of treating people
of different races differently, acts which you endorse?
personal benefits that ethnic preferences have provided you
over the years, shouldn`t you have recused yourself from
the Ricci case?
Will you promise to recuse yourself in all future cases
involving quotas, affirmative action, discrimination, or
Six years ago, in the
previous major affirmative action case, Justice
Sandra Day O`Connor wrote in her
majority decision in
expect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest approved
today. " (That`s now only 19 years from 2009.) Do you
Justice Ruth Bader Ginsburg wrote in her dissenting opinion
"The Court`s order
and opinion, I anticipate, will not have staying power."
Do you agree?