This morning Barack Obama announced his pick to replace Souter on the Supreme Court. He chose Sonia Sotomayor (yet another name my spell checker doesn't know). Sotomayor is a Hispanic female. Which begs the question: was she chosen due to her qualifications or due to her race and gender? Was there not a more qualified white male available? Or white female. Possibly but doubtful.
Sotomayor said some good things this morning at her introduction:
I firmly believe in the rule of law as the foundation for all of our basic rights.
For as long as I can remember, I have been inspired by the achievement of our founding fathers. They set forth principles that have endured for than more two centuries. Those principles are as meaningful and relevant in each generation as the generation before.
It would be a profound privilege for me to play a role in applying those principles to the questions and controversies we face today.
Which almost sounds like she might base her opinions on the Constitution, and not, oh, the latest fad of the left or foreign law.
But Ms. Sotomayor comes with some baggage that might give us a clue to how she'll rule from the bench.
In one case, she ruled fish must be protected no matter the cost. The Wall Street Journal's Environmental Capital blog quotes from her decision:
The [Environmental Protection] Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.
In other words, no matter how much it costs, no matter how many jobs it costs, the fish must be protected and the EPA can't look at a cost-benefit analysis. This ruling was overturned by the current Supreme Court (Souter was a dissenter).
And the Wall Street Journal Law blog has a selection of her opinions and statements which paint a picture of an activist judge (links original):
For starters, there’s the speech she gave at Duke back in 2005. Click here for the YouTube video. The controversial quote: “Court of appeals is where policy is made. And I know this is on tape and I shouldn’t say that because we don’t make law . . . I know. . . I’m not promoting it, I’m not advocating it . . . ”
No, courts do not make policy, they enforce and interpret it.
She ruled that the 2nd Amendment doesn't apply to the states (like every other part of the Bill of Rights and the 8th Circuit just decided that it does, right down to the city level).
And probably her most controversial (so far) ruling was that New Haven Connecticut could throw out standardized tests for promotion of firefighters because whites scored better than minorities. This one is probably going to the Supreme Court, too (where she'll be able to be wrong again).
Finally, the left-wing New Republic even has come out against Sotomayor. Jeffery Rosen writes:
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")
So this is who will probably be confirmed. We're replacing a reliable liberal with a reliable liberal who happens to be Hispanic. Suppose we couldn't ask for anything better from this crowd now in power.