To the surprise of no one, President Obama has chosen a person of the Left to succeed Justice Souter. It should be noted that she was first nominated to the federal bench by none other than George H.W. Bush in a flagrant political deal with the Dems—as she was nowhere near his first choice, but he picked her anyway. This Bush also gave us Souter. Interesting how these things work out, isn’t it?
Few are arguing that she is a distinguished jurist, and most of those in favor of her are touting her biography. I seem to remember a current justice with an even more compelling biography, but that did not seem to win him too many points with the opposition. His name is Clarence Thomas. As you will recall, Thomas is black but since he is also conservative, there was a vicious attempt to derail his nomination. Thomas was also nominated by George H.W. Bush, who did not exactly break a sweat in defending him during the confirmation hearings.
Neither, it must be said, did Reagan lift a finger to defend Robert Bork, during his unsuccessful confirmation attempt. Besides, it was Saint Ronnie who first brought the Bushes to national prominence, with his curious jettisoning of Paul Laxalt as a running mate in 1980.
As to Sotomayor, she is being criticized primarily for her role in the case of Ricci v. Stefano and for some reckless statements. In Ricci, an admittedly race-neutral exam did not yield the “correct” racial mix of successful candidates. As as result, Ricci and several other candidates who did well on the fire department promotion exam were not promoted. She ruled against them, and was accused by her liberal colleague Jose Cabranes of trying to hide the decision, so that it might not be appealed to the Supreme court.
The widely disseminated remark that is getting her into trouble at the moment was given in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the UC Berkeley Boalt Hall School of Law in 2001:
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”
Besides being blatantly—and foolishly—racist (if you don’t think it’s racist, try reversing the references “Latina woman” and “white male”), it also betrays an astonishing level of self-absorption. When have you EVER heard a person refer to themselves as “wise”? My quick answer is “never,” other than this single instance. For a judge who has been reversed by the Supreme Court on many occasions, including several where her knowledge of the applicable law was flawed, pride notwithstanding, how could she still describe herself in that manner with a straight face?
Barring any major gaffes at the senate hearings, she will likely be confirmed, but some of us on the Right hope that she will be suitably grilled.
Still, it would just be substituting one liberal for another. There is also the possibility that if she becomes overzealous she could actually turn a fellow liberal justice to the other side in particular decisions. This was rumored to have happened with Clarence Thomas and Sandra Day O’Connor (O’Connor was pushed to be more liberal).
Moreover, it is difficult to imagine how the Court could get much worse than it has been since the days of Earl Warren, anyway. There have been countless bad decisions, with Roe v. Wade getting the bulk of the ink. However, in terms of rotten public policy, inasmuch as abortion was already legal in several states at the time of Roe, few decisions in the entire history of the Court were as bad as Kelo v. New London. Kelo affirmed the right of a city to use the power of eminent domain to remove a perfectly legitimate housing development to make way for a private commercial development, that would benefit the city only by increasing the tax base.
In her dissent, O’Connor did not like the fact that a private corporation was the beneficiary of the government taking…
“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
“This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.'”
“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”
As you might suspect, the project turned into a complete debacle, and there was widespread public perception that corrupt officials in New London were bribed (or at least promised significant kickbacks) to put forth the project in the first place.
Given the public outcry and the number of property owner protective laws that were enacted in its wake, there is a strong possibility that Kelo is the most reviled Supreme Court decision of all time.
For those liberals who were telling us in the 1960s—amid much popular distaste with the Warren Court—that “Our Supreme Court protects us,” I point out Kelo as a shining example of how wrong they were and still are.