Now that the Michael Jackson story has mostly faded from the public consciousness, the media has turned its eye towards Sotomayor. I have been watching the hearing on CNN and I am confident that she will receive the nomination. After all, the Democrats are in control and it would be rather odd of them to turn against Obama’s nominee. As such, the hearing is primarily a formality and a chance for politicians to posture and try to score political points.
Of course, there is always a chance (however remote) that something will happen to dramatically change the seemingly inevitable course of events. For example, Sotomayor might accidently overdose on any pain medication she is taking for her broken ankle. Driven to madness by the drugs and the presence of so many politicians, she might shout out “Gringos, voy a tomar sus armas y exigir a todas las mujeres tienen abortos plazo tarde!” This, would, of course probably put a damper on her chances. But, barring such an event, things look good for her.
The three main attacks on her have been on her infanous “wise latina” remark, on her ruling in the case involving the promotion test, and her apparent confirmation conversion (in which she says what the audience wants to hear, even if it seems to go against what she has said in the past). The usual side attacks have been that she will be an “activist” judge (“activist judge”= “a judge I disagree with”) and that she will let her personality impact her decisions.
The remark, as I have blogged before, is grounds for concern. But, to put it in perspective, if that is the worst thing she has said in public, then she is doing quite well. Also,what is most critical is to look at her rulings-do they reflect racism and sexism on her part?
Her ruling on the case also raises legitimate concerns. hile her ruling was overturned 5 to 4, all the judges were critical of her view. However, this is mitigated by the fact that it is only one case (hence must be assessed in the context of all her rulings) and that, obviously enough, judges disagree. The key question is whether this ruling revealed a serious flaw in her competency or not.
The confirmation conversion is, of course, what every nominee goes through. While people should be consistent, this cannot be used as a special attack against her-although the general practice should be condemned (and hence her using this tactic). It is, of curse, perfectly legitimate to point out inconsistencies in what she has said in the past and what she is saying now. But, of course, people do change their views. After all, Reagan was a Democrat once. The key question here is whether she changed her views for good reasons or if she is just saying what she believes they want to hear. Another important question is whether she really believes what she is saying now.
As far as being an activist judge, that seems to be a spurious charge. What is really being said, it most often seems, is that an activist judge is simply a judge the person making the accusation does not agree with. However, if a substantial flaw can be found in her legal approach, then that would be fair grounds for attack.
Finally, obviously her personality will play a role in her judgments. To say otherwise would be to claim that a person has a special mind that can judge in pure isolation from everything else that makes up that person. People can train themselves to minimize the impact of their biases, but to eliminate the impact of personality is hardly possible. The key question here is whether she would be prejudiced in a significant way or whether she would be objective to the degree that can reasonably be expected of a Supreme Court judge.