The Supreme Court charade
by George Jonas
National Post
July 18, 2009
There's a charade going on in Washington. After people finish playing it, an accomplished lawyer and jurist will be appointed to the highest court of the land. Being accomplished won't be the sole reason for her appointment. Accomplished people abound in America. If appeal court judge Sonia Sotomayor is elevated to the U.S. Supreme Court, it will be because of her flaws as much as her virtues.
Judge Sotomayor will get the nod because (a) she's a Hispanic woman, (b) she believes that being a Hispanic woman makes her more qualified to judge matters than people who aren't Hispanic women and (c) she's prepared to deny under oath that she believes what she believes.
If Judge Sotomayor hadn't embraced identity politics, it's unlikely she would have been Barack Obama's choice. Being a Hispanic woman, while a necessary condition, wouldn't have been sufficient. Without being the kind of person who holds that a "wise Latina" would reach a better conclusion in a legal dispute than a white male, she wouldn't have fit the Social Engineer-in-Chief's agenda of "change."
Is her stated belief that wise Latinas are better suited to resolving legal disputes than white males a sound judgment? Many senators don't think so, but what matters most is that Sotomayor doesn't think so herself. Her "wise Latina" remark was "a rhetorical flourish that fell flat." That's what she told the Senate Judiciary Committee this week under oath.
Sotomayor has been adamant throughout the hearing that any belief in the enhanced ability of a particular ethnic or gender group to resolve legal disputes is mistaken. It certainly isn't what she thinks, she testified, notwithstanding her repeated endorsement of this erroneous view in her public speeches over the years. She did say it, yes; she said it time and again, but did she mean it? No, sir.
At one point, Sotomayor explained to Texas Republican Sen. John Cornyn that she was trying to play off Justice Sandra Day O'Connor's observation that, all things being equal, a wise old man should reach the same decision as a wise old woman. When Cornyn pointed out that this was the opposite of a wise Latina reaching a better conclusion that her male counterpart, Sotomayor said, hmm, well, yes, you got it, that's why her words "failed." They "didn't work," although her address, taken as a whole, meant to convey the same message as Justice O'Connor's. Sotomayor didn't explain why she kept using failed words that didn't work speech after speech, and Cornyn was too much of a gentleman to ask.
Anyone bald-faced enough to offer such blatant nonsense would be laughed out of court, but in the Senate Judiciary Committee no one is laughing. Custom entitles a popular president -- especially one, like Obama, who has the votes to enforce his choice anyway -- to stack the Supreme Court as long as the nominee doesn't suffer a "complete meltdown," as South Carolina Republican Sen. Lindsay Graham put it -- that is, as long as she doesn't deny what everybody knows with such transparent falsity as to turn her stumble into a pratfall. A flaw in the nominee's judgment does no harm as long as there's a flaw in her character to fix it. "Hey, Judge, we're on your side," senators say. "Just make it sound good." That's how things work in the big leagues.
As 21st-century America transitions from a free to an interventionist society, candidates to Supreme Court appointments need two sets of opinions: the first to be nominated, the second to be confirmed. Before ascending the summit of American justice, Sotomayor requires a character flawed enough to deny, under oath, what her judgment has been flawed enough to endorse. The Senate's alchemists mix a dash of character flaw into a pot of flawed judgment, bring it to a slow boil at a confirmation hearing, stir it for a few days while solemnly intoning magic incantations of utter rot and finally distill from this witch's brew the elixir they need turn the base metal of brassy politics into the gold of justice.
The media goes along with the charade, with honourable exceptions. "The same ritual that requires [Sotomayor] to lie equally forbids anyone to comment on the lie," wrote David Frum this week. "The senators are left to express hope that the Sonia Sotomayor who showed up in the Judiciary Committee to repeat carefully coached words is the 'real' Sonia Sotomayor and that the Sonia Sotomayor of the previous 17 years is some kind of imposter."
In one of her old speeches, Sotomayor had said: "Our gender and national origins may and will make a difference in our judging." If she admitted to the Committee that that's what she thinks -- as she undoubtedly does and perhaps rightly so -- would the senators confirm her? We'll never know. This Latina is too wise to take a chance. In Roman mythology, Veritas, the goddess of truth, gave birth to Virtue. In American mythology, a lie is about to give birth to the first Hispanic woman judge on the Supreme Court.