Advise and dissent

John J. Hopkins Jun. 6, 2009, 6:16am


The 1962 drama "Advise and Consent" is a political junkie's delight.

Starring Henry Fonda as a Secretary of State nominee running into a buzz saw during his Senate confirmation hearing, this Otto Preminger directed film features an all star cast and tells the story of power, influence, corruption, idealism and finally, redemption... in short, the timeless tale of Washington hardball politics. It is a somewhat obscure movie, but highly recommended, and serves as today's movie metaphor.

As everyone knows, the President has the authority to appoint the Justices of the Supreme Court. Article II, section 2 of the Constitution gives such power, but it also imposes a duty on the Senate to "advise and consent" to all such appointments.

Given the life time tenure, it is an awesome responsibility to be sure, one that must be diligently discharged, even at the price of giving offense to the sirens of political correctness. Its two part mandate - to both advise and then to consent - is so often passed over in the desire to curry favor with the special interest group de jour. Such is apparently the case with the upcoming hearing on the nomination of Justice-to-be Sonia Sotomayor.

It has been put forth that the appointment of Sotomayor can be opposed only "at the peril" of those unconvinced of her fitness for the Court. Presumptively, she lies in the safe cocoon of immunity by virtue of her status as a woman and more importantly, as the first nominee of Hispanic origin. This doubled down diversity makes her untouchable, or so the thought goes, as to dare even raise questions about her fitness is to risk being branded as racist, a charge so oftentimes indiscriminately leveled but rarely appropriate.

The confirmation of Sotomayor with its anointing of identity politics - emphasizing not the individual, that is WHO you are, but rather the WHAT you are - a comfortably predictable notion based on racial or gender politics, is most certainly the path of least resistance in a culture without apparent backbone. Easy though it may be, inevitable some might say, in the final analysis it would be so very wrong for the nation and should be rejected.

Lest I once again be wrongly tarred with the wide brush of the bigot, I believe that her fatal flaws lie not in her DNA as a Hispanic woman - the stuff of which she however does believe gives legal reasoning powers far beyond those of mere mortal white men, but indeed in her improperly prejudiced mind, disqualifying her from advancing to the Supreme Court.

President Obama's questionable criterion of "empathy," begged the question from the outset. Empathy with whom? Is not Justice the goal, and is she not blind? Empathy means an unacceptable alignment with the one side of the litigation before the Bench, a policy fraught with obvious disaster.

"I would hope that a wise Latino woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

This widely quoted comment from Sotomayor made to rebut Justice Sandra Day O'Connor's observation of that there exists no female or male way of judging, speaks volumes. Sotomayor was under scrutiny as a possible choice for the Court ever since her nomination to the Court of Appeals.

Despite what should be shackles imposed on the perpetual audition of naked ambition, she makes such a seeming reckless statement. The mind trembles at the thought of the boundless liberties granted to her by confirmation by the Senate. Moreover, it demonstrates a thought pattern that elevates one racial - gender combination above all else, and especially over the prevailing power. The goal is justice. The goal is equality, without bias. It is not, nor can it ever be, merely revenge or pay backs.

Fairness dictates that the face of the Supreme Court change, expand with the evolving American society. Doors formerly closed are rightfully opened, places set for those previously ignored. But contrary to the White House spin, Sotomayor is not the best for the job, not even the best Latino candidate.

Fellow 2nd Circuit Court of Appeals Jose Carbranes, an immigrant from Puerto Rico and likewise a Clinton appointee, is certainly a viable alternative, if indeed race is the key factor. But such was not the choice, as while his story is just as compelling, his record is not as liberal, and alas, he is of a disqualifying gender.

Every day, all over the country, juries are selected in cases pending before the District Court. If any potential juror ever gave such a bias and closed minded statement as nominee Sotomayor, they would experience the quick exit of disqualification for cause by the presiding Judge.

How can it be reasonably contended that the author of such a biased pronouncement be given the honor of elevation?

Her confirmation must be opposed. As it does to be the vocal opposition to so many of the erroneous Obama choices, it takes only courage. Be not afraid.

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