Judging the Nominee (060109) by J. F. Kelly, Jr

A commentary by J. F. Kelly, Jr. Some presidents are said to have shaped the U. S. Supreme Court because of the opportunity to fill multiple vacancies. But should any president really try to shape the highest court in the land if, by shaping, is meant imposing a litmus test to predetermine a nominee’s ideological positions? Justice should be blind and objective in interpreting the law and in a perfect world presidents would simply seek the best fitted. Alas, the world is far from perfect and politics intrudes greatly on the process of nominating and confirming. It has gotten downright ugly in recent times. I believe that presidents deserve wide latitude in selecting cabinet members and other key members of the executive branch. It is, after all, the president’s administration and he should be allowed to work with people who share his political philosophy and convictions. Elections have consequences, as they say. I believe that the Senate wastes too much time on contentious nomination hearings that often needlessly degrade and humiliate the nominee and discourage competent people from public service. That said, selecting Supreme Court justices is something of another matter. Their job is not to support the president’s policies or to create or shape the law but rather to interpret it objectively. Politics or ideology should play no part in the process. But, of course, they do. It wasn’t always that way, though. The shameful smear job done on the well-qualified Judge Robert Bork changed everything and coined a new term: ” borking”. The opposition party would undertake exhaustive searches to discover anything in a nominee’s record that could possibly be used against him whether or not it had anything to do with his legal qualifications. It was used unsuccessfully in attempts to derail the confirmation of Justices Clarence Thomas and Samuel Alito. So should Republicans stoop to these tactics in opposing Judge Sonia Sotomayor’s confirmation to serve on the high court? If you search long enough, you can often find something that can be blown out of proportion. But revenge is not a useful motive and another wrong doesn’t make a right. Both parties should work to eliminate borking from the confirmation process. Instead, the nomination of Judge Sotomayor should be opposed based primarily upon two revealing statements and a ruling that raise serious questions regarding her objectivity. The first example is the now-famous statement that she “would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion (as a judge) than a white male.” I’ll refrain from expressing the indignation that I feel as a white male who would be excoriated for making a similar statement. It is not only racist, it is nonsensical and if Ms. Sotomayor truly believes that race influences the quality of legal decisions, then perhaps she is not so wise. The second remarkable example is her comment at Duke University where she spoke of courts making policy before apparently catching herself and attempting to make a joke out of it. But it’s no joke. This is precisely what a majority of Americans report in polls that they are fed up with; unelected activist judges making laws and circumventing the will of the people and their elected representatives. Laws are made by legislatures, not the courts. Defenders of Sotomayor’s nomination say that these words were taken out of context. Really? Read the words. They seem clear enough and they suggest subjectivity and biases that are unacceptable in a Supreme Court justice or, for that matter, in any judge. The third reason why her confirmation should be opposed by anyone who believes that justice should be colorblind is her decision in the New Haven firefighters’ case. As one of the federal appeals judges, she backed the city in rejecting the results of two examinations for promotion to lieutenant and captain because no black firefighters scored high enough to be promoted. The whites and two Hispanics who did pass high enough were thus denied earned promotions. There is no other term for this other than racial discrimination, and it is ugly regardless of which race is discriminated against. The U.S. Supreme Court will soon hear the appeal and, hopefully, this will become another of Judge Sotomayor’s decisions that have been overturned. Mr. Obama has called for prompt confirmation. Forget about it. He may have the Senate votes to ultimately prevail, but the opposition should not go quietly. The president knows that opposing a Latina with a compelling personal story such as Sotomayor’s will anger Hispanic voters, but he should not be given an easy ride on this. Democrats did not hesitate to smear Justice Thomas who is black or Justice Miguel Estrada, a Hispanic, whom George W. Bush nominated to the D.C. District Court. Sonia Sotomayor’s rise from an immigrant family surrounding in a Bronx housing project is an inspiring success story. Her empathy and richness of experience are admirable qualities but her views on racial equality and the role of judges have become, because of her own words, subject to serious question. Copyright 2009 by J. F. Kelly, Jr. Dr. Kelly is a retired Navy Captain and bank senior vice-president. A veteran of over thirty years of naval service, he commanded three ships and the Navy Personnel Research and Development Center in San Diego. He joined Great American Bank in 1983, serving first as Training and Development Director and later as Director of Human Resources. He retired from the bank in 1994 and has since devoted his efforts to community services. He served as foreman of the San Diego County Grand Jury in 1997-1998, president of the Lions Club of San Diego, the San Diego Council of the Navy League of the United States, the Lions Foundation, the Boys and Girls Foundation, Vice-president of the City of San Diego Salary setting commission and as chairman of the Business Council of the San Diego County Drug and Alcohol Abuse Prevention Task Force. He currently serves on the board of the Boys and Girls Foundation and the Coronado Roundtable. He currently teaches ship handling, seamanship and navigation at the Naval Base, San Diego. A freelance writer, his weekly column on current events appears in the California Republic, the Coronado EagleJournal, eCoronado.com and other publications. Dr. Kelly has degrees in education, management and leadership including a doctor of education degree from the University of San Diego. He and his wife, the former Charlane Hughes, reside in Coronado.