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This Minority Will Be Vindicated

August 12, 2009

IBD     10 Aug 09

Supreme Court: The 31 senators who voted against Justice Sonia Sotomayor may get grief now, but time is on their side. Their reservations will be proved to be right on the money.

Saturday will be forever marked as the historic day on which the first Hispanic Supreme Court justice was sworn in. The Senate on Thursday voted 68-31 to confirm President Obama’s first pick for the high court.

In the coming months and years, however, we are likely to see something else historic unfold, bringing into question the integrity of our system of checks and balances.

The new justice’s record of past statements and rulings virtually guarantees that the Sonia Sotomayor who appeared before the Senate Judiciary Committee, who promised always to judge, never to legislate, will not be the person we find writing opinions from the bench.

When this happens, the 31 senators now depicted by Democrats as bigots will be proved right. Those lawmakers’ opposition, which has nothing to do with race, boils down to a single, inescapable conclusion: The woman with the compelling life story who appeared before them was profoundly and intentionally misleading them.

The nine Republican senators who voted for her, on the other hand, such as South Carolina’s Lindsey Graham, Indiana’s Richard Lugar, and Missouri’s Kit Bond, may well end up being viewed by their constituents as having let themselves be bamboozled by the rhetorical flourishes of a street-smart New Yorker.

A new University of Tennessee analysis scrutinized Sotomayor’s record using a statistical model based on the records of 31 Supreme Court justices. It concluded what we have been warning of in these pages for months now: Sotomayor is going to be the single most liberal of the nine high-court members.

The study warns that she will lean to the left on 67% of the cases during her first term. By contrast, Justices Antonin Scalia and Clarence Thomas cast liberal votes less than 40% of the time over three terms, while Justices John Paul Stevens and Ruth Bader Ginsburg voted on the liberal side 61% — significantly less than the prediction for their newest colleague.

But it really doesn’t take a study to know what kind of justice Obama’s choice will be; it just takes a common-sense look at what she has written and said over the years.

This is a judge who has joked about appellate courts being where policy and laws get made. She has said that asking federal judges not to consider foreign law on cases that are supposed to be guided by the U.S. Constitution is asking them to “close their minds” because “ideas have no boundaries.”

The new justice also provided some insight into her infamous “wise Latina” remark in an early-1990s TV interview for the Practising Law Institute.

Asked if she found women lawyers before her court more guilty of “histrionics,” Sotomayor replied that actually “I have found that to be the case in reverse with older men toward me. And that may be more a paternal attitude than anything else. So I have received lectures from older male attorneys.”

Does her overturned ruling in the New Haven Fire Department reverse discrimination case, in addition to many other reversed decisions, reveal a robe-clad radical, eager to shake up what she views as America’s white, male, paternalistic society?

It seems clear that her ideology is that of the high court’s past radicalism, manifested in its unanimous 1971 Swann ruling in favor of busing, its 1972 Furman decision banning the death penalty, and 1973’s Roe v. Wade case, nullifying the abortion laws of all 50 states.

If this is the kind of justice Sotomayor turns out to be, not only will those 31 senators be fully and forever vindicated; the Senate confirmation process — allowing judges to rise to power after conducting a con game under oath — will be exposed as severely broken.

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