PrintMay 29, 2009
Krauthammer's 'teaching moment' on Sotomayor
Charles Krauthammer has what is sure to be a controversial column up today in the Washington Post . In it, he urges conservatives to:
Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No "temperament" insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy.
Krauthammer highlights the case of Frank Ricci, a dyslexic firefighter who overcame that handicap to pass a promotion test in New Haven, Connecticut. Unfortunately for Ricci, no African Americans passed the test so the city threw the results out. Ricci sued and Sotomayor, sitting on a panel with two of her collegues, summarily dismissed the case (and the important constitutional issues it raised) in a one paragraph decision.
Krauthammer writes that Sotomayor should have to explain herself with regard to Ricci as well as her statements on race:
And on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats' enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.
Sotomayor shares President Obama's vision of empathy as lying at the heart of judicial decision-making -- sympathetic concern for litigants' background and current circumstances, and for how any judicial decision would affect their lives.
He then asks for trouble from the right when he urges Republican senators to vote to confirm her:
When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story, and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."
Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds -- consistently violated by the Democrats, including Sen. Obama -- that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.
Vote Democratic and you get mainstream liberalism: a judicially mandated racial spoils system and a jurisprudence of empathy that hinges on which litigant is less "advantaged."
There's no doubt Krauthammer is a good conservative. He is one of the leading public intellectuals in America, left or right. But he is wrong here.
The idea that we should give the president what he asks for is quaint but outmoded. The Democrats saw to that with their smearing of GOP presidential nominations for SCOTUS through the years. I am not saying that we should use the same tactics that the Democrats used. But there is, as Krauthammer points out, vital principles at stake. Voting to confirm Sotomayor would undermine those principles at a time when they should be defended with everything we have.
This is no time to stand on "tradition." It's no time to hide behind history. It is time to stand up and be counted as the founding principles of this country come under serious attack by a president and a court that substitutes "outcome" jurisprudence for the rule of law.
Yes, she will be confirmed even if every GOP senator votes "no." But going on record as opposing this radical jurist would cheer the right and reveal to the American people the nature of the beliefs of a president who seeks to "remake" America by trashing the founding principles of our republic.
Hat Tip: Ed Lasky
