President Obama has surprised no one by appointing a vividly race-conscious Hispanic as his first nominee to the United States Supreme Court. Some of Sonia Sotomayor’s choicer observations have now been widely reported: “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.” She also says sex and race “may and will make a difference in our judging.” (These remarks appeared in a publication that is called–apparently with a straight face–the Berkeley La Raza Law Journal) Miss Sotomayor is certainly no stranger to identity politics. She is a member of the Puerto Rican Bar Association, the Hispanic National Bar Association, the Association of Judges of Hispanic Heritage, and the National Council of La Raza.
Miss Sotomayor’s record bears out her self-proclaimed bias. She dismissed the right of New Haven’s white firefighters to bring suit when their promotion exam was thrown out because only whites got the top scores–and she didn’t even think it necessary to write an opinion explaining why.
She clearly thinks her role is to rule, not to ensure that the laws are Constitutional. In another of her well-circulated comments she said that a “court of appeals [the level at which she sits] is where policy is made.” No, Sonia, the legislative branch is where policy is made. It would be hard to think of a statement that so blatantly demonstrates a lack of what we used to call “judicial temperament.” This woman has sharply liberal politics and exercises her power in an attempt to advance those politics. Not surprisingly, her opinions are frequently reversed on appeal.
Miss Sotomayor’s record shows that, like Justice Ruth Ginsberg, she is likely to give foreign legal opinions considerable deference. One European legal flourish much admired by liberals is to justify hate speech laws by arguing that some opinions are so loathsome they are not protected by the right of free speech. Miss Sotomayor has not yet had a chance to try this argument out on the First Amendment, but I suspect she would love the opportunity. If she is confirmed, she will end up like Thurgood Marshall, a justice whose racial preoccupations and biases eventually became so simple-minded as to be almost comical.
And there is little doubt she will be confirmed. As noted above, she is on record as saying, in effect, that Hispanic women are wiser and better than white men. The spineless white men we call senators will prove her right by confirming her.
Of course, justices such as Sonia Sotomayor are what Americans, whether they knew it or not, were voting for last November, and we can count on more nominations of the same stripe: unapologetic race and sex quotas designed to turn the Supreme Court into an engine of increasingly blatant dispossession. If a majority-white court has repeatedly shown itself capable of finding that equal opportunity requires discrimination against whites, what level of creativity will an increasingly non-white court bring to the job of interpreting the Constitution? Mr. Obama will no doubt do his best to make sure we find out.