The Senate Judiciary Committee hearings on Obama's Supreme Court nominee Sonia Sotomayor are currently scheduled to begin this Monday, July 13.
The Democrats want to rush Sotomayor through with merely some celebrations of her Hispanicness, and no tough questioning. For example, these will be the first Supreme Court nominee hearings in decades that National Public Radio, that adjunct of the Obama Administration, won't broadcast live.
Some Republican Senators have been talking about trying to postpone the hearings until September, claiming that they need more time to review her complex record.
In reality, Sotomayor's record isn't all that complicated. It consists of two parts.
Of course, the problem with being on the Court of Appeals (like Sotomayor at present) is that if you indulge your political biases too much, you'll get embarrassingly overruled by the Supreme Court (as Sotomayor got overturned on the Ricci v. DeStefano case).
Once you are on the Supreme Court, however, you are (effectively) above the law. So past opinions you've written are of less predictive value about how you will rule when unfettered than your off-hours volunteering.
And this is the second part of Sotomayor's record:
Racial preferences have been very, very good to Sonia Sotomayor. And it would be only natural for her to be very, very good to preferences when she's on the Supreme Court.
Obviously, Sotomayor is going to be approved. The Democrats have 60 Senators and she only needs 50.
And many Republican Senators would no doubt like to fold quietly, what with, as we are constantly told in the media, Hispanics accounting for nine percent of the vote according to exit polls in 2008. (Actually, the Hispanic share of the vote in 2008 turned out to be, according to the gold standard Census Bureau survey of 50,000 households, only 7.4 percent, but who cares about reality?)
The tactical issue for the Republicans, however, is whether they are going to forfeit all the political mileage they could get out of the Ricci victory—in which the Supreme Court brusquely junked Sotomayor's decision upholding corrupt racial discrimination against white firemen in New Haven.
The Main Stream Media, of course, has every intention of shoving Ricci far down the Memory Hole. The only way to remind the public of what is at stake is to make Ricci the central focus of the Sotomayor hearings.
The strategic issues for Republicans are manifold:
Are they going to acquiesce in the growing assumption in the press that minorities, such as Obama and Sotomayor, are beyond criticism on anything related to race? If so, what does that bode for the future of the GOP?
Will they forego their best opportunity to point out that Obama not the post-racial uniter of David Axelrod's imagination, but is merely Sotomayor with a more oleaginous prose style?
Will they use the high unemployment rate to go on the offensive against racial preferences, especially against preferences for immigrants?
Allow me to offer some advice and questions for the Senators.
First, go easy on the excruciatingly boring questions about judicial philosophy.
The Obama Administration will no doubt have provided Judge Sotomayor with test-marketed talking points. Anyway, the public doesn't much care about judicial philosophy in the abstract. It cares about philosophies when they lead to injustices done to actual people, such as what Sotomayor authorized be done to Ricci and his colleagues.
Second, you don't have to ask Sotomayor the toughest questions about the Ricci case. The media is all prepared to raise a stink about evil white male Senators being unchivalrous and insensitive being toward a Latina. But, fortunately, there's a sleazy white male stand-in for Sotomayor.
Make Ricci v. DeStefano humanly vivid to the public by calling as witnesses both parties: the victim-turned-winner, fireman Frank Ricci, and the victimizer-turned-loser, New Haven Mayor John DeStefano, Jr.
Then let the eight-term politician (who happened to be a Democrat) have it with both barrels for his slimy acts of racial discrimination against Ricci.
As the basis for your questioning use Justice Samuel Alito's blistering concurring opinion in Ricci, which vividly spells out how the mayor badgered the Civil Service Board into cheating Ricci.
An argument among three Italian-American guys—Ricci, DeStefano, and Alito—is less easy for the media to spin along its usual ethnic/gender "Who? Whom?" lines. So, for once, people will be allowed to think simply about principles of justice.
It won't be hard to show that, in practice, "diversity" is just another word for DeStefano's Boss Tweed-type politics.
Here are my questions to ask the "wise Latina"—after you've worked out on DeStefano.
Obviously, she'll bob and weave around most of them, refusing to answer on the usual specious grounds employed by past nominees. But these questions would be worth asking for their own rhetorical sake:
Much as Chief Justice John Roberts asked during oral arguments over Ricci… Can you assure us, Judge Sotomayor, that your decision in Ricci for the City of New Haven would have been the same if minority firefighters scored highest on this test in disproportionate numbers, and the City said we don't like that result, we think there should be more whites on the fire department, and so we're going to throw the test out?
On the South Wall of the Supreme Court Building's courtroom are carvings of the "great lawgivers of history." The second earliest lawgiver depicted is Hammurabi, king of Babylon, who is honored for carving the laws in stone and putting them up in public—which meant that even the king couldn't change the laws after the fact to suit his convenience. Why should Mayor DeStefano enjoy the privilege that King Hammurabi denied himself: to see what the final score turned out to be, then change the rules of the game?
In the Obama Administration's friend of the court brief to the Supreme Court on the Ricci case, the Obama Administration called for your decision for summary judgment in favor of Mayor DeStefano to be overturned and the Ricci case to be remanded to local district court for retrial on the facts. Why did you vote for a more extremist outcome than the Obama Administration later called for?
Chief Justice Robert s recently wrote, "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Do you agree?
Here's a guest question from Emily Bazelon of Slate and the Yale Law School about your terse judgment in Ricci: "The problem for Sotomayor, instead, is why she didn't grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?"
Is the primary point of our civil rights laws to protect minorities or to protect individuals of all races?
You have described yourself on video as "a product of affirmative action" and an "affirmative action baby" and that it is "critical that we promote diversity." Considering your often-expressed passionate views on the topic and personal self-interest in promoting ethnic preferences, how could Frank Ricci have expected even-handed, colorblind justice from you?
Yes, but, according to the Supreme Court, Frank Ricci didn't get justice from you, now did he?
I realize you resent these questions, but aren't doubts about racial bias inevitably created by the act of treating people of different races differently, acts which you endorse?
Considering the personal benefits that ethnic preferences have provided you over the years, shouldn't you have recused yourself from the Ricci case?
Will you promise to recuse yourself in all future cases involving quotas, affirmative action, discrimination, or disparate impact?
Six years ago, in the previous major affirmative action case, Justice Sandra Day O'Connor wrote in her majority decision in Gratz, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. " (That's now only 19 years from 2009.) Do you agree?
Justice Ruth Bader Ginsburg wrote in her dissenting opinion on Ricci: "The Court's order and opinion, I anticipate, will not have staying power." Do you agree?
Should immigrants be eligible for racial and ethnic preferences?
Why?
Judge Sotomayor, you were a member of the National Council of La Raza from 1998 to 2004 . What do the words "La Raza" mean in English?
[Steve Sailer (email him) is movie critic for The American Conservative. His website www.iSteve.blogspot.com features his daily blog. His new book, AMERICA'S HALF-BLOOD PRINCE: BARACK OBAMA'S "STORY OF RACE AND INHERITANCE", is available here.]
