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Sotomayor: More than "Gender" and Ethnicity By: Marion Edwyn Harrison, Esq.
FrontPageMagazine.com | Wednesday, June 03, 2009

The media and myriad interest groups are having what tritely may be termed a field day in commenting upon Judge Sonia Sotomayor. Some such comments manifest relevant grounds for confirmation, others relevant grounds at least for in-depth research and analysis, perhaps rejection. Unfortunately a mass of such comments dwells in the realm of the irrelevant.

It obviously is a subject of popular interest that the nominee rose from a deprived background, is a female, is ethnically Latina. However, it equally is obvious that, beyond human-interest type of news and noisiness, a judicial nominee’s sex (commonly called “gender,” as though it were grammar, not human), childhood deprivation and ethnicity may be interesting but certainly do not relate to judicial qualifications. No sophisticated observer, of course, would doubt that two of President Barack H. Obama’s major considerations were the female and Hispanic combination. That’s called practical politics but, except sometimes coincidentally, it bears little upon one’s judicial record and ability as a competent, objective - and, let us hope, reasonably circumspect and traditionalist - appellate judge.

History sometimes is relevant, sometimes not, but those of us who have at least one degree in history almost invariably find history fascinating. Such is the record of United States Supreme Court nominations which have failed. This commentary would induce readers’ sleep even more quickly if all were cited, all reasons and theories reported. Hence, only two references follow, out of 34 not confirmed by the United States Senate, which number actually is 29 different individuals (due to renominations).

The Supreme Court had little to do in the George Washington administration because most law was made at the state, not federal, level. (Ah, were it that we had a nearer ratio nowadays!) President John Tyler, for partisan and other historically applicable reasons, may be said to have batted the worst: Two vacancies, nine nominated, one confirmed.

The most recent rejection reflects the quintessence and triumph of three concurrent evils - left-wing militancy, wild partisanship, defamation of a nominee. That wholly unacceptable misconduct by too many Senators gave rise to a new verb the infinitive of which is to bork. The immediate victim, of course, is the competent, courageous, experienced, objective, scholarly Robert H. Bork. The broader victim is federal jurisprudence.

Rumors are rampant about Judge Sotomayor’s motivations. Analyses of her scholarship are underway. Two law professors noted for their liberal views and ability to gain media attention are reported in the media as having questioned the scholarship of some Sotomayor opinions. Suspicion is rampant. If the Committee on the Judiciary proceeds slowly, thoroughly and objectively, as its Chairman implies it might, notwithstanding the fact that objectivity is a shortcoming with a few Senators, it will be possible meaningfully to evaluate the nomination. Let us be hopeful, if naive, that her background, sex and ethnicity, although the open-sesame in her nomination, will have nothing to do with the Senatorial evaluation.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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