Supreme Court to Face Mecca
by Ann Coulter

Americans can thank the Supreme Court for the attempted car bombing of Times Square, as well as any future terrorist attacks that might be less “amateurish” and which our commander in chief will be unable to thwart unless the bomb fizzles.

Over blistering dissents by Justices Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito, five Supreme Court justices have repeatedly voted to treat jihadists like turnstile jumpers. (Thanks, Justice Kennedy!)

That’s worked so well that Obama’s own attorney general is now talking about making massive exceptions to the Miranda warnings — exceptions that will apply to all criminal suspects, by the way — in order to deal with terrorists having to be read their rights as a bomb is about to go off.

Let’s be clear: When Eric Holder thinks we’re being too easy on terrorists, we are being too easy on terrorists.

Either the five liberal justices demanding constitutional rights for terrorists are out of their minds, or the religious worship of President Franklin D. Roosevelt has got to stop. According to liberal logic in the war on terrorism, FDR was a bloodthirsty war criminal.

When six Germans and two Americans were suspected of plotting an attack on U.S. munitions plants during World War II, FDR immediately ordered them arrested and tried in a secret military tribunal held behind closed doors at the Department of Justice.

Within weeks, all were found guilty. Six of the eight, including one U.S. citizen, were given the electric chair. One German was sentenced to life in prison and the other American citizen — who had turned himself in and revealed the plot to the FBI — got 30 years.

The Supreme Court upheld the secret trial, but didn’t get around to producing an opinion until after Old Sparky had rendered its own verdict.

Consider that the eight saboteurs never actually did anything other than enter the country illegally, which I gather is considered a constitutional right these days (except in my future home state of Arizona).

Still, FDR had them executed or imprisoned after trial in a secret military tribunal.

How many future car bombers would be discouraged if Faisal Shahzad were tried by military tribunal and executed by, say, the end of the month? What if Army doctor Maj. Nidal Malik Hasan had already gotten the chair?

But we can’t do that because, according to five Supreme Court justices who aren’t “progressive” enough for American liberals, terrorists waging war on U.S. soil get full constitutional protections.

So, instead, we’re left arguing about whether an exception should be made to Miranda rights in the case of a terrorist who plotted with foreign agents to plant a car bomb in Times Square. (“You have the right to remain violent …”)

We are at war. The Supreme Court has no right to stick its fat, unelected nose into the commander in chief’s constitutional war powers, particularly in a war against savages whose only reason for not nuking us yet is that they don’t have the technology. (The New York Times hasn’t gotten around to printing it.)

The reason Democrats are obsessed with controlling the courts is that unelected judges issuing final edicts is the only way liberals can attain their insane policy agenda. No group of Americans outside of Nancy Pelosi’s district would vote for politicians who enacted laws similar to the phony “constitutional rights” liberal justices proclaim from the Supreme Court.

President Obama would rather surrender his authority as commander in chief to the Supreme Court than get blamed for deciding to treat terrorists as if they’re Paris Hilton facing a drunk driving charge. Let the court do it.

(Recall that Obama’s decision to try Khalid Sheikh Mohammed, mastermind of the 9/11 attack, in a civilian court in New York was even less popular with the American people than Jay Leno at 10 p.m.)

Meanwhile, elected Democrats in Congress are also happy to yield their law-making authority to the court, so they don’t have to be the ones voting for laws mandating late-term abortions; hard-core pornography on the Internet; government-sanctioned race discrimination; forced cross-district busing; confiscatory property tax hikes to fund socially engineered school desegregation plans; bans on the public observation of religious traditions shared by most Americans; free education, health care and welfare benefits for illegal immigrants; and a redefinition of the 2,000-year-old institution of marriage against the express wishes of voters in every state to vote on it.

(Note: This is only a partial list.)

The Supreme Court has become a Blue Ribbon Commission for Lunatics, issuing binding edicts in 5-4 votes that Americans would never in a million years vote for. Distinguishing between Elena Kagan and any other Democratic nominee is like distinguishing between Hannibal Lecter and Vlad the Impaler.

A Tangled Web: Part II
by Thomas Sowell

Much of the backlog of cases in our over-burdened courts has been created by the courts themselves, with adventurous judicial “interpretations” of laws that leave a large gray area of uncertainty around even the most plainly written legislation. Lawyers of course fish in these troubled waters, creating much needless litigation, but it is judges who have troubled the waters in the first place.

Nowhere is this more true than in civil rights cases. Since the Constitution of the United States and the Civil Rights Act of 1964 both decree equal treatment for all, there should not be nearly as much basis for litigation in civil rights cases as there is– at least not in cases where the facts are well known and undisputed, as in the recent New Haven firefighters’ case that made it all the way up to the Supreme Court.

What was it that required three different levels of federal courts to try to figure out whether what actually happened was or was not racial discrimination– with a decision finally being reached by the narrowest possible margin of 5 to 4 in the Supreme Court?

At the heart of much of this legal complexity and moral angst is a judge-made theory that a “disparate impact” of any job requirement on different groups is evidence of discrimination.

With two very different theories of what constitutes job discrimination– either different treatment or different outcomes– it is no wonder that courts have tied themselves into knots trying to figure out whether a particular case shows racial discrimination, even when the facts are known and plain.

The same notion– and the same confusion– applies in many other situations. If a higher proportion of blacks than whites get turned down for mortgage loans, then that too has been taken as evidence of racial discrimination.

It doesn’t matter if blacks and whites are different on innumerable factors that go into mortgage loan decisions, as are Hispanics or Asian Americans as well.

All these groups have different credit scores, different incomes and many other differences. Why is it surprising that they have different loan approval rates? While the issue is often posed in terms of whites versus non-whites, whites also get turned down for mortgage loans more often than Asian Americans, who usually have higher credit scores than whites.

Only the underlying dogma that different outcomes for different groups are evidence of discrimination makes this an issue– and a source of unending controversy and polarization.

It is not that judges are incapable of seeing through the intellectual flaw in the “disparate impact” dogma. But that dogma is too central to efforts at social engineering to be given up for the sake of mere logic or facts.

That is why courts split along ideological fault lines in cases like the New Haven firefighters’ case, where the crucial facts are not even in dispute. The only real dispute is over whether a test is automatically biased if different groups pass it at different rates. Apparently the groups themselves cannot possibly be different, according to “disparate impact” theory.

Facts play a very small role in such issues– including the facts as to whether social engineering– especially a lowering of standards for blacks– actually helps blacks on net balance. But empirical studies indicate that black students do better at colleges and universities where their qualifications are similar to those of the other students at those institutions and worse where they are admitted with wide disparities in qualifications.

Where in fact have blacks been most successful? Sports and entertainment come to mind immediately. These are areas where blacks have to meet the same standards as anybody else.

If Derek Jeter swings at three pitches and misses, he is out, just like any white ballplayer. If people stop watching Oprah Winfrey’s program, it will get cancelled, just like anybody else’s.

The biggest beneficiaries from the “disparate impact” dogma are those who claim to be helping minorities. They benefit by feeling noble, winning votes or attracting money. The actual consequences for blacks– or for the polarization of American society– seems to be of little concern.

A Tangled Web
by Dr. Thomas Sowell

While the recent Supreme Court decision in the New Haven firefighters’ case will be welcome news to those who don’t think that a gross injustice is O.K. when those on the receiving end are white, the reasoning behind the 5 to 4 decision is a painful reminder that the law is still tangled in a web of assumptions, evasions and contradictions when it comes to racial issues.

Nor have these problems been clarified with the passage of time. On the contrary, the growing complexity and murkiness of civil rights law over the years recalls the painful saying: “Oh, what a tangled web we weave when first we practice to deceive.”

The original Civil Rights Act of 1964 was very straightforward in forbidding discrimination. But, even before that Act was passed, there were already people demanding more than equality of treatment. Some wanted equality of end results, some wanted restitution for past wrongs, and some just wanted as much as they could get.

Opponents of the Civil Rights Act said that it would lead to racial quotas and reverse discrimination. Advocates of the Act not only denied this, they wrote the language of the law in a way designed to explicitly prevent such things. But judges, over the years, have “interpreted” the Civil Rights Act to mean what its opponents said it would mean, rather than what its advocates put into the plain language of the legislation.

A key notion that has created unending mischief, from its introduction by the Supreme Court in 1971 to the current firefighters’ case, is that of “disparate impact.” Any employment requirement that one racial or ethnic group meets far more often than another is said to have a “disparate impact” and is considered to be evidence of racial discrimination.

In other words, if group X doesn’t pass a test nearly as often as group Y, then there is something wrong with the test, according to this reasoning or lack of reasoning. This implicitly assumes that there cannot be any great difference between the two groups in the skills, talents or efforts required.

That notion is the grand dogma of our time– an idea for which no evidence is asked or given, and an idea that no amount of contradictory evidence can change in the minds of the true believers, or in the rhetoric of ideologues and opportunists.

Trying to reconcile that dogma with the principle of equal treatment for all has led courts into feats of higher metaphysics that the Medieval Scholastics could be proud of.

The dogma survives because it is politically useful, not because it has met any test of facts. Innumerable facts against it can be found around the world and down through history.

All sorts of groups in all sorts of countries have been demonstrably better than other groups at particular things, whether economic, intellectual, political or military. This fact is so blatant that only people with great cleverness can manage to deny the obvious. That cleverness is what creates the tangled web of confusion that has plagued civil right cases for decades.

Does anybody seriously doubt that blacks usually play basketball better than whites? Does anybody seriously doubt that the leading cameras and lenses in world have long been produced by Germans and Japanese? Or that Jews have been over-represented among the top performers in various intellectual fields?

Many groups whose performances have greatly outstripped the performances of others in a particular field have often been in no position to discriminate, even when the disparities have been far greater than those between blacks and whites in the United States.

In a number of countries, powerless minorities have so outperformed the dominant majority that group preferences and quotas have been instituted to favor the majority group that has otherwise been unable to compete. This has happened in Malaysia, Sri Lanka, Nigeria, and Fiji, among other places. Before World War II, quotas to benefit the majority were common in a number of European universities, where Jewish students outperformed others.

It is not stupidity, but ideology and politics, which allow the “disparate impact” dogma to create a tangled web of deception in even the highest levels of our legal system. The recent Supreme Court’s decision in the New Haven firefighters’ case was a rare example of sanity prevailing, even if only by a vote of 5 to 4.

So Much for Wise Latinas
by Ann Coulter

With the Supreme Court’s decision in Ricci v. DeStefano this week, we can now report that Sonia Sotomayor is even crazier than Ruth Bader Ginsburg.

To recap the famous Ricci case, in 2003, the city of New Haven threw out the results of a firefighters’ test — which had been expressly designed to be race-neutral — because only whites and Hispanics scored high enough to receive immediate promotions, whereas blacks who took the test did well enough only to be eligible for promotions down the line.

Inasmuch as the high-scoring white and Hispanic firemen were denied promotions solely because of their race, they sued the city for race discrimination.

Obama’s Justice-designate Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of “talk to the hand.” She upheld the city’s race discrimination against white and Hispanic firemen on the grounds that the test had a “disparate impact” on blacks, meaning that it failed to promote some magical percentage of blacks.

This strict quota regime was dressed up by the city — and by Sotomayor’s opinion — as a reasonable reaction to the threat of lawsuits by blacks who were not promoted.

That’s a complicated way of saying: Racial quotas are peachy.

According to Sotomayor, any test that gets the numbers wrong — whatever “wrong” means in any given context of professions, populations, applicants, workers, etc. — is grounds for a lawsuit, which in turn, is grounds for an employer to engage in race discrimination against disfavored racial groups, such as white men.

Consequently, the only legal avenue available to employers under Sotomayor’s ruling is always to impose strict racial quotas in making hiring and promotion decisions.

Say, if the threat of a lawsuit permits the government to ignore the Constitution, can pro-lifers get New Haven to shut down all abortion clinics by threatening to sue them? There’s no question but that abortion clinics have a “disparate impact” on black babies.

This week, the Supreme Court ruled 5-4 for the white and Hispanic firefighters, overturning Sotomayor’s endorsement of racial quotas.

But all nine justices rejected Sotomayor’s holding that different test results alone give the government a green light to engage in race discrimination. Even Justice Ginsburg’s opinion for the dissent clearly stated that “an employer could not cast aside a selection method based on a statistical disparity alone.”

Indeed, the dissenters argued that the case should be returned to the lower courts to look for some hidden racial bias in the test. For Sotomayor, the results alone proved racial bias.

The one advantage Sotomayor’s talk-to-the-hand opinion has over Justice Ginsburg’s prolix dissent is that brevity prevented Sotomayor from having to explain why quotas aren’t quotas.

That was left to Ginsburg.

Liberals desperately want race quotas — as long as quotas never come to their offices.

But they can’t say that, so instead they talk in circles for 10 hours straight, until everyone else is exhausted, and then, when no one is paying attention, they announce: So we’re all agreed — we will have racial quotas.

Based on her lifetime of experience working as a firefighter, Ginsburg said: “Relying heavily on written tests to select fire officers is a questionable practice, to say the least.” Liberals prefer a more objective test, such as race.

Isn’t excelling on written tests how Ruth Bader Ginsburg got where she is? It’s curious how people whose entire careers are based on doing well on tests find them so irrelevant to other people’s jobs.

In the middle of a fire, it can either be a great idea or the worst possible idea to open a door. An excellent method for finding out if your next fire chief knows the correct answer is a written test.

Unleashing the canard of all race-obsessed liberals, Ginsburg observed that courts have found that a fire officer’s job “involves complex behaviors, good interpersonal skills, the ability to make decisions under tremendous pressure, and a host of other abilities — none of which is easily measured by a written, multiple choice test.”

So does a lawyer’s job. And yet attorneys with absolutely no “interpersonal skills” get cushy jobs and extravagant salaries on the basis of their commendable performance on all manner of written tests, from multiple choice LSATs and bar exams to written law school exams.

I note that Ginsburg has not shown any particular interest in rectifying the “disparate impact” of legal exams: She never hired a single black law clerk out of the dozens she employed in more than a decade as an appeals court judge. (Her hiring practices on the Supreme Court are a state secret, but I can state with supreme certainty that her clerks do not reflect the racial mix of Washington, D.C.)

But liberals think other people’s jobs are a joke, so the testing must also be a joke. That is — other than their preferred test: “Is the applicant black, female or otherwise handicapped?”

There is no test that can prove all things about an employee and so there is no test that can’t be derided by the race-mongers. Which is exactly the point. Get rid of all tests — except for lawyers who graduated at the top of their law school classes at Columbia, like Ruth Bader Ginsburg. Then liberals are free to impose racial quotas on other people’s jobs without limit.

As crazy as this is, even Ginsburg and the other dissenters made a big point of pretending there was some flaw in this particular test. None adopted Sotomayor’s position that unequal test results alone prove discrimination.

This suggests that a wise Jewess, due to the richness of her life experiences, might come to a better judgment than a Latina judge would.

Equality on Trial
by Thomas Sowell

For the fourth time in six cases, the Supreme Court of the United States has reversed a decision for which Judge Sonia Sotomayor voted on the 2nd Circuit Court of Appeals. If this nominee were a white male, would this not raise questions about whether he should be elevated to a court that has found his previous decisions wrong two-thirds of the times when those decisions have been reviewed?

Is no one supposed to ask questions about qualifications, simply because this nominee is Hispanic and a woman? Have we become that mindless?

Qualifications are not simply a question of how long you have been doing something, but how well you have done it. Judge Sotomayor has certainly been on the federal bench long enough, but is being reversed four out of six times a sign of a job well done?

Would longevity be equated with qualifications anywhere else? Some sergeants have been in the army longer than some generals but nobody thinks that is a reason to make those sergeants generals.

Performance matters. And Judge Sotomayor’s performance provides no reason for putting her on the Supreme Court.

Although the case of the Connecticut firefighters is the latest and best-known of Judge Sotomayor’s reversals by the Supreme Court, an even more revealing case was Didden v. Village of Port Chester, where the Supreme Court openly rebuked the unanimous three-judge panel that included Judge Sotomayor for “an evident denial of the most elementary forms of procedural due process.”

Longevity is not the only false argument for putting Sonia Sotomayor on the Supreme Court. Another is the argument that “elections have consequences,” so that the fact that Barack Obama won last year’s elections means that his choice for the Supreme Court should be confirmed. This is a political talking point rather than a serious argument.

Of course elections have consequences. But Senators were also elected, and the Constitution of the United States gives them both the right and the duty to say “yes” or “no” to any president’s judicial nominees.

It is painfully appropriate that the case which finally took the Sotomayor nomination beyond the realm of personal biography is one where the key question is how far this country is going to go on the question of racial representation versus individual qualifications.

Too much that Sonia Sotomayor has said and done over the years places her squarely in the camp of those supporting a racial spoils system instead of equal treatment for all. The organizations she has belonged to, as well as the statements she has made repeatedly — not just an isolated slip of the tongue taken “out of context”– as well as her dismissing the white firefighters’ case that the Supreme Court heard and heeded, all point in the same direction.

Within living memory, there was a time when someone who was black could not get certain jobs, regardless of how high that individual’s qualifications might be. It outraged the conscience of a nation and aroused people of various races and social backgrounds to rise up against it, sometimes at the risk of their lives.

Many, if not most, thought that they were fighting for equal treatment for all. But, today, too many people seem to think it is just a question of whose ox is gored– or for whom one has “empathy,” which amounts to the same thing in practice.

Clever people say that none of this matters because Republican Senators don’t have enough votes to stop this nominee from being confirmed. But that assumes that every Democrats will vote for her, regardless of what the public thinks. It also assumes that alerting the public doesn’t matter, now or for the future.

The standards for judging the nomination of Sonia Sotomayor are not the standards of either the criminal law or the civil law. That is, nothing has to be proven against her “beyond a reasonable doubt” or even by “a preponderance of the evidence.”

Judge Sotomayor is not in any jeopardy that would entitle her to the benefit of the doubt. It is 300 million Americans and their posterity who are entitled to the benefit of the doubt when the enormous power of determining what their rights are is put into anyone’s hands as a Supreme Court justice for life.

Sotomayor and the Ugliness of Identity Politics
By Brian Garst

The calculated nomination of judge Sonia Sotomayor to the Supreme Court is the latest example of the rejection of the idea of a color-blind society. Martin Luther King dared to dream of a future when his four children could “one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” Unfortunately Yolanda King, the eldest of his children, passed away before that dream was ever realized, as today the discussion surrounding the newest Supreme Court nominee is about the color of her skin, rather than the merit of her judicial philosophy.

Defenders of Sonia Sotomayor’s nomination have taken to condemning the rhetoric of Rush Limbaugh and Newt Gingrich under the pretense that the conservative icons are responsible for denigrating the discussion and making it all about race. This could hardly be further from the truth. It is the proponents and adherents of identity politics, the most prominent of which who now resides in the White House, that have burdened us with perpetual discussion about irrelevancies like race, and it is Sonia Sotomayor herself who has made it her defining characteristic. This is a far cry from the post-racial promise of the Barack Obama campaign.

The politics of identity is always presented as an end in itself; the goal is to achieve representation for minority groups. But in practice it is a tool designed to obscure the true objectives of its practitioners: the advancement of left-wing politics. It is the political beliefs of the individual, and not their group membership, that determines whether identity politics will be used for or against them, to enhance their reputations or to destroy them. This is the exact opposite of what proponents of identity politics proclaim. The contrast between the treatment of Sonia Sotomayor on the one hand, and Miguel Estrada, Clarence Thomas and even Michael Steele on the other, perfectly illustrates this point.

Opposition to the appointment of Clarence Thomas from the left was both bitter and racial. They were apparently not so impressed with compelling life stories in 1991, despite the fact that Clarence Thomas rose from absolute poverty, his hometown lacking sewage and paved roads. Having been raised by an illiterate grandfather in Savannah, Georgia, Thomas often witnessed the debilitating impact of racism first hand. He overcame these obstacles thanks to the ideas of hard work and perseverance instilled in him by his grandfather. Did these facts lead liberals to conclude that Thomas had “wisdom accumulated from an inspiring life’s journey,” as President Obama said of Sotomayer? Hardly. Obama stated during the campaign that he would not have nominated Thomas.

At the time of Thomas’ nomination, Julian Bond penned a Washington Post editorial to explain opposition to what would be only the court’s second black member from the NAACP, a group ostensibly designed to help advance black people like Thomas. Bond rejected the idea that Thomas’s experience qualified him for the seat and declared that the opposition, “shouted ‘no’ to the notion that Thomas’s commendable rise from poverty…[was] sufficient qualification for a lifetime appointment to the Supreme Court.” On the contrary, “his reward should be a well-lived life, not permanent appointment to the Supreme Court.”[i] Don’t hold your breath waiting for similar conclusions about Sotomayor, despite the many questions raised, by Obama supporters no less, regarding her intellectual prowess on the court. And let’s not even get into how often words like “Uncle Tom” were thrown about during Thomas’ confirmation process.

Speaking of Uncle Toms, Michael Steele also found himself on the wrong end of the identity politics agenda when he ran for the U.S. Senate in 2006. In a demonstration of liberal tolerance, Steele was pelted with Oreo cookies, supposedly signifying his status as black on the outside and white on the inside. Maryland democrats explicitly condoned these and other racial attacks on the grounds that being black and conservative justifies a response of racism and hatred.[ii]

The most shocking case, however, is that of Miguel Estrada. Estrada was nominated by President Bush for the U.S. Court of Appeals for the D.C. Circuit, a position he was, by most accounts, more than qualified for. Estrada graduated magna cum laude from Harvard Law School, where he was also editor of the Harvard Law Review, a post that would later be highly touted on Obama’s thin Presidential resume. In addition to time spent in private practice, Estrada went on to clerk for Supreme Court Justice Anthony Kennedy, and then joined the Department of Justice during the Clinton Administration as an Assistant to the Solicitor General.

In 2001, President Bush made the Estrada appointment to the Court of Appeals. The democratic response was apocalyptic, and Estrada was eventually forced to withdraw after 2 years of stonewalling and filibusters. Thanks to a slew of leaked memos between democratic Senators and liberal interest groups, we now know the despicable motives behind this opposition: Estrada was a Hispanic who might one day be appointed to the Supreme Court, and by a Republican, no less. One memo highlights that Estrada was “especially dangerous” in part because he “is Latino.” In the twisted world of identity politics, advancement of minority groups is only acceptable when it’s made through the appropriate political party, namely the democrats. Conservative minorities are not afforded the same benefits of identity politics as liberal minorities, because they are a threat to the condescending notion that minorities may only think and vote democratic.

Naturally, Estrada’s opposition had to come up with better reasons than blatant racism to publicly oppose a candidate even they admit in the memo was “clearly an intelligent lawyer.” In their “talking points” section, they justified opposition on the grounds that he “has serious temperament problems,” and is a “right-wing zealot.” This last line of attack is somewhat baffling given the repeated claims that he “has virtually no paper trail.” And far from being the asset touted with Sonia Sotomayor, Estrada’s “compelling life story” was dismissed as evidence of nothing more than “affirmative action.” It’s hard to imagine the uproar if a similar statement were to be made about Sotomayor today.

The different treatment of Sotomayor and other minorities by the proponents of identity politics is puzzling only when we make the mistake of taking them at their word that they seek merely to advance historically disadvantaged groups. But when the cloak is removed, we see that the real objective is to advance the Democrat Party and the leftist agenda. Perhaps in this small way Dr. King’s dream finally has been realized: those standing in the way of liberal democrats will be subjected to the abusive politics of personal destruction regardless of race or creed.

Much has been made of Sotomayor’s statements that Latina women can be expected to make better judicial decisions than white males. While it’s true that the statement is inherently racist, though not of the hateful sort that stains America’s past, the debate to date has mostly missed the larger problem: her statement reveals a judicial philosophy that elevates personal preferences over adherence to the letter of the law. That we are presently mired in a discussion of the former at the expense of the latter is a testament to the destructive power of identity politics. It is even more disappointing that a President uniquely positioned to transcend such old, tired debates of the past has instead chosen to perpetuate them for political gain.

Brian Garst blogs at Conservative Compendium.

• [i] Julian Bond, “My Case Against Clarence Thomas; “His reward should be a well-lived life, not permanent appointment to the Supreme Court.”,” The Washington Post, September 8, 1991.
• [ii] S.A. Miller, “‘Party trumps race’ for Steele foes; Democrats condone ‘Uncle Tom,’ Oreo attacks,” The Washington Times, November 2, 2005.

Judge Sotomayor and the Diversity Crowd
by Linda Chavez

The diversity crowd doesn’t really believe in diversity. In fact, what they’re really aiming for is conformity of opinion. They expect that members of racial and ethnic groups will adhere to liberal orthodoxy, and woe to those who don’t fall into line. If Judge Sotomayor were a conservative or the nominee of a Republican president, we’d be hearing that she wasn’t an “authentic” Latina at all.

I recall similar arguments used by my critics when I was the first Latina nominated to a U.S. Cabinet back in 2001. You’re only celebrated as the “first” by the diversity crowd when you’re the first Democrat. Just ask Colin Powell, Condoleezza Rice, Spencer Abraham, Elaine Chao, Bobby Jindal, or Michael Steele.

As someone whose profession entails having opinions, perhaps I shouldn’t be surprised by how often I’ve been asked what I think about Judge Sonia Sotomayor’s nomination to the Supreme Court. What is surprising, however, is that many of those asking the question seemed less interested in my analysis of the judge’s judicial record than in whether I felt any special pride in her appointment because of our shared ethnicity.

I could see their puzzlement as I recounted some of Judge Sotomayor’s rulings. I was clearly missing the point of their inquiry: She’s an Hispanic woman; I’m an Hispanic woman. We both grew up in disadvantaged circumstances but managed to overcome our humble beginnings. We must be simpatico, right? Wrong.

Apparently it comes as a surprise to some people, but not all Hispanics (or women) think alike. Why should race, ethnicity, gender, or even class determine one’s point of view on political or legal issues? What’s more, when it comes to Hispanics, there is often not even a single, shared culture that might create a common bond.

As L.A. Times columnist Gregory Rodriguez recently pointed out, most of the people described as Hispanics — or Latinos, the term Rodriquez prefers — don’t identify with the catch-all term, but think of themselves in terms of their national origin (Mexican, El Salvadoran, Puerto Rican, etc.). Not surprisingly, most immigrants regard their country of origin as important in their identity.

But for most Hispanics who were born in the U.S., our primary identity is as Americans. In the largest poll of its kind in 2002, nearly 60 percent of third-generation Hispanics used the term “American” as either the only or first term to describe themselves, and 97 percent said they use American to identify themselves at least some of the time.

Still, the media and most politicians seem to think Sotomayor’s ethnic heritage and gender are relevant to the story of her Supreme Court nomination. She’s the first female Hispanic to be named to the highest court in the land, and that must mean something, the thinking goes. But what? Frankly, it was only a matter of time before an Hispanic reached the Court. True barriers — meaning disqualifications based on race, ethnicity or gender — simply don’t exist anymore.

Most ordinary Americans seem to have caught on to this phenomenon faster than elites, which may be why they are becoming increasingly skeptical of the idea that we need government policies to enforce “diversity.” A new Quinnipiac University poll taken after the Sotomayor nomination shows that 70 percent of Americans are opposed to granting preferences to minorities or women in hiring in order to promote diversity. Even members of some of the groups granted such preferential treatment seem unenthusiastic about it. Hispanics, for example, overwhelmingly oppose preferential treatment in government hiring in order to promote diversity, 58 to 38 percent. But they split more evenly when the question is phrased in the more nebulous terms of “affirmative action” in hiring, promotions, or college admissions, with 48 percent opposing and 47 percent favoring affirmative action for Hispanics.

Which brings me back to Judge Sotomayor’s nomination and my reaction to it. I doubt that those clamoring for more diversity on the Court would be thrilled if the nominee were an Hispanic (or Asian or black or Muslim or gay) woman whose views were closer to Justice Antonin Scalia’s than Ruth Bader Ginsburg’s. I don’t remember many diversity devotees cheering Clarence Thomas’ appointment — even though his life story trumps Sotomayor’s in the overcoming hardship category.

The next time someone asks me what I think about the Sotomayor pick, I’ll say: It’s not about a black president picking an Hispanic woman to replace a white man on the court. It’s about a liberal president choosing a liberal jurist to replace a retiring liberal justice. It’s not diversity; it’s more of the same.

“Out of Context”: Part III
by Thomas Sowell

As part of the biographical preoccupation with Judge Sonia Sotomayor’s past, the New York Times of May 31st had a feature story on the various New York housing projects in which she and other well-known people grew up– including Whoopi Goldberg, Kareem Abdul-Jabbar, Thelonious Monk and Mike Tyson.

There was a map of New York City and dots pin-pointing the location of the project in which each celebrity grew up. As an old New Yorker, I was struck by the fact that not one of the 20 celebrities shown grew up in a housing project in Harlem!

The housing projects in which they grew up were different in another and more fundamental way. As the New York Times put it: “These were not the projects of idle, stinky elevators, of gang-controlled stairwells where drug deals go down.” In other words, these were public housing projects of an earlier era, when such places were very different from what we associate with the words “housing project” today.

Just the reference to unlocked doors on the apartments there, so that children could more easily visit playmates in nearby apartments on Saturday mornings to watch television, creates an image that must seem like something out of another world to those familiar only with the housing projects of today.

There were standards for getting into the projects of those days and, if you didn’t live up to those standards, they put you out. Kareem Abdul-Jabbar was quoted as saying, “When kids played on the grass, their parent would get a warning.” That seems almost quaint when you think of what has gone on in the housing projects of a later era.

Since there has been so much talk of putting some of Sonia Sotomayor’s inflammatory words “in context,” perhaps we should put her personal life in context, if the media insist on making her personal life a factor in her nomination to the Supreme Court. While she grew up in a public housing project, the words “housing project” in that era did not mean anything like the housing projects of today.

A relative of mine lived in one of the housing projects back then– and we were proud of him, as well as glad for him, because such places were for upright citizens in those days– working class people with steady jobs and good behavior. Clever intellectuals had not yet taught us to be “non-judgmental” about misbehavior or to make excuses for vandalism and crime.

While Sonia Sotomayor was not born with a silver spoon in her mouth, let’s not make her someone who rose from such depths as those conjured up by the words “housing projects” today. It is bad enough that biographical considerations carry such weight in considerations of nominees for the Supreme Court. But, if biography must be elaborated, let it at least be done “in context.”

It has always made me a little uneasy when generous well-wishers have discussed my educational background as if it was something almost miraculous that I came out of the schools in Harlem and went on to Ivy League institutions. But any number of other people did exactly the same thing.

The Harlem schools of that era were no more like the Harlem schools of today than the housing projects of that era were like today’s housing projects. They had classes grouped by ability and, if you were serious about getting a good education, you could get into one of the classes for kids who were serious and receive an education that would prepare you to go on in life.

There is a lot to ponder about why both the schools and the housing projects degenerated so much after the bright ideas of the 1960s intelligentsia spread throughout society, leaving social havoc in their wake.

Too many people who rose to where they are today because of a foundation of traditional values have become enthralled by the very different ideas prevalent in the elite intellectual circles to which they moved. Judge Sotomayor seems to be one of those, with her ideas about race and the policy-making role of judges.

It is bad enough that so many of those “advanced” ideas have undermined for others the foundation that Sonia Sotomayor had as she grew up, despite being raised in a home with a modest income. There is no need to let her use the Supreme Court to destroy more of those traditional American values.

“Out of Context”: Part II
by Thomas Sowell

As the mainstream media circles the wagons around Judge Sonia Sotomayor, to protect her from the consequences of her own words and deeds, its main arguments are distractions from the issue at hand. A CNN reporter, for example, got all worked up because Rush Limbaugh had used the word “racist” to describe the judge’s words.

Since it has been repeated like a mantra that Judge Sotomayor’s words have been “taken out of context,” let us look at Rush Limbaugh in context. The cold fact is that Rush Limbaugh has not been nominated to sit on the highest court in the land, with a lifetime appointment, to have the lives and liberties of 300 million Americans in his hands.

Whatever you may think about his choice of words, those words and the ideas behind them do not change the law of the land. The words and actions of Supreme Court justices do. Anyone who doesn’t like what Rush Limbaugh says can simply turn off the radio or change the station. But you cannot escape the consequences of Supreme Court decisions. Nor will your children or grandchildren.

What does it say about a nominee to the Supreme Court that the most that her defenders can say in her defense is that her critics used words that her defenders don’t like?

What does it say about her qualifications to be on the Supreme Court when her supporters’ biggest talking points are that she had to struggle to rise in the world?

Bonnie and Clyde had to struggle. Al Capone had to struggle. The only President of the United States who was forced to resign for his misdeeds– Richard Nixon– had to struggle. For that matter, Adolf Hitler had to struggle! There is no evidence that struggle automatically makes you a better person.

Sometimes, instead of making you appreciative of a society in which someone born at the bottom can rise to the top, it leaves you embittered that you had to spend years struggling, and resentful of those who were born into circumstances where the easy way to the top was open to them.

Much in the past of Sonia Sotomayor, and of the president who nominated her, suggests such resentments. Both have a history of connections with people who promoted resentments against American society. La Raza (“the race”) was Judge Sotomayor’s Jeremiah Wright. If context is important, then look at that context.

Sonia Sotomayor has, in both her words and in her decision as a judge to dismiss out of hand the appeal of white firefighters who had been discriminated against, betrayed a racism that is no less racism because it is directed against different people than the old racism of the past.

The code word for the new racism is “diversity.” The Constitution of the United States says nothing about diversity and the Constitution is what a judge is supposed to pay attention to, not the prevailing buzzwords of the times.

What the Constitution says is “equal protection of the laws” for all Americans– and that is not taken out of context. People have put their lives on the line to make those words a reality. Now all of that is to be made to vanish into thin air by saying the magic word “diversity.”

The landmark Civil Rights Act of 1964, like the Constitution, proclaimed equal rights for all, not special rights for those for whom judges have “empathy.”

When the Civil Rights Act of 1964 was being debated in Congress, its opponents claimed that it would lead to discrimination against white people. Its supporters declared that it meant no such thing and added new provisions to make sure that it meant no such thing. That was the law that was passed.

It was not the law, but the judges, who changed equal rights into special rights and thereby set the stage for the new mantra of “diversity” that trumps equal rights. Diversity was Judge Sotomayor’s rationale for going along with the denial of equal rights for white firefighters in Connecticut.

When all else fails, supporters of Judge Sotomayor say that she is Hispanic and a woman, and that it would be politically dangerous to deny her a place on the Supreme Court. This is as much an insult to the intelligence of Hispanic and female voters as it is to the Constitution of the United States and to those who put their lives on the line for equal rights.

‘Out of Context’
By Thomas Sowell

In Washington, the clearer a statement is, the more certain it is to be followed by a “clarification” when people realize what was said. The clearly racist comments made by Judge Sonia Sotomayor on the Berkeley campus in 2001 have forced the spinmasters to resort to their last-ditch excuse, that it was “taken out of context.”

If that line is used during Judge Sotomayor’s Senate confirmation hearings, someone should ask her to explain just what those words mean when taken in context.

What could such statements possibly mean — in any context — other than the new and fashionable racism of our time, rather than the old-fashioned racism of earlier times? Racism has never done this country any good, and it needs to be fought against, not put under new management for different groups.

Looked at in the context of Judge Sotomayor’s voting to dismiss the appeal of white firefighters who were denied the promotions they had earned by passing an exam, because not enough minorities passed that exam to create “diversity,” her words in Berkeley seem to match her actions on the judicial bench in the 2nd Circuit Court of Appeals all too well.

The Supreme Court of the United States thought that case was important enough to hear it, even though the three-judge panel on which Judge Sotomayor served gave it short shrift in less than a page. Apparently the famous “empathy” that President Obama says a judge should have does not apply to white males in Judge Sotomayor’s court.

The very idea that a judge’s “life experiences” should influence judicial decisions is as absurd as it is dangerous.

It is dangerous because citizens are supposed to obey the law, which means they must know what the law is in advance — and nobody can know in advance what the “life experiences” of whatever judge they might appear before will happen to be.

It is absurd because it flies in the face of the facts. It was a fellow Puerto Rican judge on the 2nd Circuit Court of Appeals — Jose Cabranes — who rebuked his judicial colleagues for the cavalier way they dismissed the white firefighters’ case.

On the Supreme Court, the justice whose life story is most like that of Sonia Sotomayor — Clarence Thomas — has a very different judicial philosophy from hers.

The clever people in the media and elsewhere are saying that “inevitably” one’s background influences how one feels about issues. Even if that were true, judges are not supposed to decide cases based on their personal feelings.

Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.

Something else is said to be “inevitable” by the clever people. That is the confirmation of Sonia Sotomayor to the Supreme Court. But it was only a year and a half ago that Hillary Clinton’s winning the Democratic Party’s nomination for president was considered “inevitable.”

The Republicans certainly do not have the votes to stop Judge Sotomayor from being confirmed — if all the Democrats vote for her. But that depends on what the people say. It looked like a done deal a couple of years ago when an amnesty bill for illegal aliens was sailing through the Senate with bipartisan support. But public outrage brought that political steamroller to a screeching halt.

Nothing is inevitable in a democracy unless the public lets the political spinmasters and media talking heads lead them around by the nose.

The real question is whether the Republican Senators have the guts to alert the public to the dangers of putting this kind of judge on the highest court in the land, so that they will at least have some chance of stopping the next one that comes along.

It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.

For GOP, Hearings Will Bring Opportunities
by Donald Lambro

After all is said and done in Judge Sonia Sotomayor’s confirmation proceedings, the fact of the matter is that she will not change the ideological makeup of the Supreme Court.

The appeals-court jurist will replace retiring Justice David Souter, one of the high court’s four reliably liberal members. Many, if not most, of the cases heard by the conservative-leaning body are decided by 5-4 votes, and that ratio will remain unchanged.

For that, conservatives have President George W. Bush to thank. He is responsible for choosing Chief Justice John Roberts and Justice Samuel Alito Jr., who shifted the court decidedly to the right. Both are still relatively young men and are expected to be on the court for many years to come. If further vacancies occur during Barack Obama’s presidency, it’s more than likely they will be among the older, much more liberal side of the bench than among its conservative warriors.

Sotomayor’s confirmation is certainly not in doubt, especially with the number of Democratic senators pushing dangerously close to the 60 mark; nor is her mark in the court’s history as the nation’s first Hispanic justice and her compelling life story that has taken her from public-housing projects to the pinnacle of judicial achievement.

But her left-wing record and controversial remarks have raised deeply troubling concerns about legislating from the bench and racial prejudice that will give the Republicans plenty of ammunition in the testy confirmation debate to come.

Republicans won’t be able to block her confirmation, expected in early August, if not before, but they will be able to exploit a number of issues that cut across all political lines — especially the issue of reverse discrimination in the workplace.

After the Souter announcement, Obama said he wanted a Supreme Court nominee who has an empathetic “common touch” on the bench. That suggests someone who is an “activist judge,” who is willing to look beyond the law, or perhaps, in some cases, disregard it altogether in order to reach a socially desired decision.

Sotomayor seemed to suggest that she was one of those judges when she said at a 2005 forum at Duke University that the appeals court is “where policy is made.” She quickly tried to soften that remark by joking that she knew she should not have uttered such words at an event that was being recorded, adding that judges should never say they “make law.”

Sen. Orrin Hatch, the ranking Republican on the Judiciary Committee who voted for her confirmation to the appeals court in 1998, said that if such comments “mean what they look like they mean on the surface, it means you’re going to get an activist justice on the Supreme Court.”

But the most politically volatile remark Sotomayor has made could be when she said a Latina would often “reach a better conclusion than a white male who hasn’t lived that life.”

That not only raised eyebrows among Republicans but also among some Democrats who feared it sent a troubling, racially charged message to the white working-class base of their party that the GOP could effectively exploit in next year’s midterm elections.

Last week, Hatch jumped on her remarks in a statement, saying that in the confirmation hearings to come, “I will focus on determining whether Judge Sotomayor is committed to deciding cases based only on the law as made by the people and their elected representatives, not on personal feelings or politics.”

But Sotomayor’s troubles don’t end there. She will also have to defend her reverse-discrimination vote in a race-based employment-promotion case that is now before the Supreme Court and will likely be decided — and get a lot of media attention — shortly before her confirmation hearings.

In 2003, some white New Haven, Conn., firefighters brought a lawsuit against the city; in Ricci v. DeStefano, they claimed to be the victims of racial discrimination when promotion tests they had passed were thrown out after finding that none of the black firefighters had qualified for promotions.

Sotomayor, in an unsigned three-judge appeals-court opinion, upheld the lower court’s ruling that denied a lawsuit by the white firefighters.

Liberal activist judges making policy from the bench, personal prejudicial empathy trumping constitutional law and reverse-discrimination rulings — all of these are highly explosive, deeply emotional issues that have the potential to hurt Obama and the Democrats in future elections.

There is no doubt they are going to be front and center in the Senate confirmation drama about to unfold in the coming weeks.

A reading of Sotomayor’s earlier confirmation hearings shows that she is more than able to handle the toughest senatorial interrogation and she knows how to defuse troublesome issues with ease.

Asked in 1997 about liberals who argue that the Constitution has to be reinterpreted in the modern age, she told Sen. Strom Thurmond that she did not agree with those who believe the nation’s governing document should be read only in terms of what “the words and the text mean in our time.”

But the issues that bother Republicans and many Americans will not go away when the questions are over and the vote is taken. They will be the political fodder in future elections.

Not all “Compelling Personal Stories” are Equal
by Michelle Malkin

Since when did securing a Supreme Court seat become a high hurdles contest? The White House and Democrats have turned Second Circuit Judge Sonia Sotomayor’s nomination into a personal Olympic event. Pay no attention to her jurisprudence. She grew up in a Bronx public housing project. She was diagnosed with childhood diabetes at 8. Her father died a year later.

And, oh, by the way, did you hear that she was poor?

It’s a “compelling personal story,” as we heard 20,956 times on Tuesday. Sotomayor’s a “real” person. Why, she even read Nancy Drew as a young girl, President Obama told us. She’s “faced down barriers, overcome the odds and lived out the American dream that brought her parents here so long ago,” Obama said.

If Sotomayor were auditioning to be Oprah Winfrey’s fill-in host, I’d understand the over-the-top hyping of her life narrative. But isn’t anybody on Sotomayor’s side the least bit embarrassed by all this liberal condescension?

Republicans are not allowed to mention Sotomayor’s ethnicity lest they be branded bigots, but every Democrat on cable television harped on her multicultural “diversity” and “obstacle”-climbing. Obama made sure to roll his r’s when noting that her parents came from Puerrrrto Rrrrico. New York Sen. Charles Schumer stated outright: “It’s long overdue that a Latino sit on the United States Supreme Court.” Color-coded tokenism dominated the headlines, with blaring references to Sotomayor as the high court’s potential “first Hispanic.”

Missouri Sen. Claire McCaskill — one of the leading Democrats tasked with guiding Sotomayor through the nomination process — carried the “compelling personal story” talking points to the tokenist extreme in an interview on Fox News:

“If you look at what this woman has been through, and the obstacles that she has had to overcome, I think she does have a richly, uniquely American experience that makes her incredibly qualified to pass judgment on some of the most important cases in our country,” McCaskill asserted. “Overcoming incredible odds, and I think that is an experience that is new to the courts. There have been a lot of privileged people that have landed on the Supreme Court. The fact that she has lived the life of the common American, trying to grow up in public housing, reaching for scholarships, reaching for the courtroom as a courtroom prosecutor, all of those things will make her a better and wiser judge. And I don’t think that is identity politics. I think that is the American experience.”

Clever. Challenging Sotomayor’s credentials and extreme views on race and the law is not merely anti-Hispanic. It’s anti-American!

More significantly, McCaskill waved the high-hurdle card after being asked to defend Sotomayor’s infamous statement at a 2001 University of California at Berkeley speech asserting brown-skin moral authority: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” McCaskill actually denied that Sotomayor had made the remarks, then argued the words were taken out of context.

You want context? It’s even worse than that sound bite. As National Journal legal analyst Stuart Taylor reported, “Sotomayor also referred to the cardinal duty of judges to be impartial as a mere ‘aspiration because it denies the fact that we are by our experiences making different choices than others.’ And she suggested that ‘inherent physiological or cultural differences’ may help explain why ‘our gender and national origins may and will make a difference in our judging.’” The full speech was reprinted in something called the Berkeley La Raza Law Journal. “La Raza” is Spanish for “The Race.” Imagine if a white male Republican court nominee had published in a law review called “The Race.”

The selective elevation of hardship as primary qualification demeans the entire judiciary. If personal turmoil makes one “incredibly qualified to pass judgment on some of the most important cases in our country,” let’s put reality-show couple Jon and Kate Gosselin on the bench. Millions of viewers tune in to watch their “compelling personal story” of life with eight children on television. It’s a “richly, uniquely American experience” of facing obstacles and overcoming the odds. Get them robes and gavels, stat.

The lesson is that not all compelling personal stories are equal. McCaskill’s assertion that “overcoming incredible odds” is “new to the courts” is ridiculous. Is she arguing that Thurgood Marshall, Felix Frankfurter and Sandra Day O’Connor faced lower hurdles than Sotomayor? And how about Clarence Thomas, a descendant of slaves who grew up in abject poverty in the South without a father? His crime, of course, was embracing the wrong ideology. So his incredible set of odds and obstacles don’t count in left-wing eyes.

Democrats are eager to celebrate diversity, you see, as long as the diversely pigmented pledge allegiance to the Left for life.