True to form, President Barack Obama -- in his remarks introducing his Supreme Court nominee, Judge Sonia Sotomayor -- said he was doing one thing while doing the exact opposite. He articulated his criteria for the optimal nominee yet chose someone who falls squarely outside those criteria -- as best we can tell.
But what's all the fuss? A foolish consistency is the hobgoblin of little conservative minds. Obama's mesmerized audiences are not supposed to pay attention to the meaning and context of his words, only to their aesthetic appeal and to the tonal qualities and modulation in his voice.
Obama said a Supreme Court nominee's two most important qualities are her rigorous intellect and mastery of the law and her recognition of the limits of the judicial role -- that a judge's job is to interpret law, not to make it.
Then came the "but," the exception that imperceptibly swallowed the rule. He quoted former Justice Oliver Wendell Holmes as saying, "The life of the law has not been logic; it has been experience." In other words: "Forget what I just said about how judges should interpret, not make, the law. I want my judges to have empathy. And don't tell anyone, but when I say 'empathy,' that's code for bending the law to achieve the results I want based on the selective empathy I have for certain victimized groups."
Before you fall for the upcoming protests that Sotomayor truly is a practitioner of judicial restraint, you might want to examine her record, including the case of Ricci v. DeStefano.
Frank Ricci is a dyslexic Connecticut firefighter who quit a second job in order to study up to 13 hours a day and paid someone to read his textbooks onto tape in preparation for the New Haven Fire Department's exam for promotion to lieutenant or captain. Though he received the sixth-highest score out of 77 applicants vying for eight vacancies, the city decided to deny him (and all other applicants) his earned promotion because no black applicants passed, even though the exam had been carefully constructed to ensure race neutrality.
Ricci was among 18 candidates -- 17 whites and one Hispanic -- who sued the city of New Haven for racial discrimination. The district judge issued summary judgment against the plaintiffs. On appeal to the 2nd U.S. Circuit Court of Appeals, Judge Sotomayor was one of three judges on the panel who issued a per curiam opinion (adopting the full reasoning of the district court without elaboration) affirming the district court's ruling.
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