Mad Prof – thank you for posting the full context of the Sotomayor quote.

Nothing in the rest of the paragraphs changes anything about the offense statement.

Before and after she seems to suggest that people of different backgrounds might see matters differently (I’m willing to bet she would agree with me that it would be a very rare occasion indeed).

To see things “differently” is one thing.  To assert that the Latino group will judge “better,” not different, but the value of “better” is a racist thing to stay.  She is saying White people are, as a group, dumber than Latinos in matters of judgement.

It’s undeniably racist.

Even the Obama Administration has seen fit not to defend it – they called it a poor choice of words.  You should not defend it either.  If I were to post the entire text you did, reversed the words Latino and White and told you Justice Scalia said it, I feel confident you’d call it racist.  You’d be right.

Good thing she isn’t interviewing for a more life affecting position like New York radio DJ, or she surely would have been fired for it like Don Imus.

I’m confident Sonia Sotomayor will not defend it.  She’s going to have to distance herself from it. She’ll have to hold her breath and pray the Senate believes that she really didn’t mean it.

If she meant it, she shouldn’t be a judge anywhere.

The case involving the white firemen, when coupled with the racist statement, has the potential to be big trouble for her.

I believe in due process.   Let’s hear what she has to say.

Here is the full context of the sentence that Republicans are using to paint Judge Sonia Sotomayor as a racist:

… Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Thoughts?

Tommy, if you honestly believe that terrorism isn’t a criminal offense, then you had better get word to the president, the Justice Department, and many federal judges across the land because they continue to treat terrorism as a crime, not an act of war. I’m referring, of course, to the criminal prosecutions and convictions of Zacharias Moussaoui, Jose Padilla, Ali al-Mari, Timothy McVeigh, Ramzi Yousef, and dozens of other terrorists.

Believe it or not, every one of those terrorists were accorded all the rights and guarantees of the Bill of Rights. The undeniable fact—one that you yourself cannot deny—is that terrorism is a crime under the U.S. criminal code. That’s precisely why the federal judges in every one of those cases either accepted a conviction in such cases.

What conservatives did is create a new-fangled judicial system run by the Pentagon for prosecuting terrorists. It is a system designed to compete against our constitutional system. And the reason that conservatives did that is that they can’t stand the constitutional protections for suspected criminals that were set forth in the Bill of Rights.

Your belief, which is the belief of most conservatives, is that because the military is playing the role of international cop, that converts a crime into an act of war. Not so. It remains a crime. Just ask any of those federal judges who presiding over those terrorism cases. In fact, why do you think the Pentagon is prosecuting terrorists in its new-fangled “judicial” system? It’s because terrorism is a crime, not an act of war, even when the Pentagon is using military force to bring the suspected criminals to justice.

By the way, it wouldn’t surprise me at all if conservatives attempt to shift drug suspects into the Pentagon system, especially if conservatives get their wish to send troops to the border to fight the drug war. As you no doubt know, the drug war has been conservatives’ (and liberals’) favorite excuse for infringing civil liberties and privacy for decades.

You might well be right about the technical reasons for Sotomayor’s rulings in those gun cases. But I remain skeptical about her philosophy regarding gun rights, in large part because liberals generally are notorious for supporting gun control. Surely you won’t deny that.

The Presser decision that you say Sotomayor relied on in rendering her decision that the Second Amendment doesn’t apply to the states was decided in 1886. Pardon me, but wasn’t that before the Supreme Court began holding that the Fourteenth Amendment incorporated provisions of the Bill of Rights and applied them to the states? Why shouldn’t the Second Amendment receive the same treatment? The fact that Sotomayor ruled the way she did doesn’t surprise me. Liberals will usually look for any excuse at all to uphold gun control.

The gun-rights issue is of critical importance to libertarians because we understand that the right to keep and bear arms is key to a free society, in that it gives people to ability to resist tyranny through force. This is what most liberals and all too many conservatives fail to recognize. They think that gun ownership is all about the right to hunt deer.

Jacob I did not bring up McConnell and Boehner in hopes that you would care or not care about what they say.  I brought them up because you used Rush, Newt and Buchanan as speakers for what Republicans are thinking, and they are not.  McConnell and Boehner are, whether you or the liberal Press cares or not.

It certainly is not common knowledge that Conservatives “hate” the civil liberty protections as found in the Bill of Rights. So uncommon would that understanding be, I see no reason to refute it until you provide the proof of it.

You do suggest as tangential proof Conservative support for Military trials at Gitmo as some evidence of that Conservatives “hate” (your word) civil rights.

Clearly you’ve never been a police officer or prosecutor.  You don’t seem to grasp the fine-tuning it takes to bring a case to court in our system of Criminal Justice.  Do you think our soldiers at war had time to call a federal judge for a warrant before they raided the safe house of al-Qaeda?  Do you think our soldiers at war had time to do chain of custody reports of evidence they found?  Do you think they can call a time-out in an attack and call in a CSI investigator?

If we upgrade enemy combatants at war to the status of a criminal defendant, the new criminal defendant will have all the protections other defendants have – terribly unfair to our soldiers who in the field are not compelled to give Miranda rights to the head of an al-Qaeda safe-house before sticking a gun in his nose and ordering him to disclose the location of the landmines and booby traps situated just outside.

But we are off the subject of Sotomayor and her inevitable confirmation by Democrats.

At one point you support the concept of Stare Decisis, and at another point you wonder if Sotomayor will come down on the right side of gun rights.

Let me combine the issues for you.  First though let me note that while the group you link to, Gun Owners of America (membership 300,000) opposes Sotomayor, the NRA (membership 4,000,000) has not done so.

In the Maloney v Cuomo case (possession of illegal nun-chucks) Sotomayor’s Court found that The Second Amendment applies only to Federal restrictions on weapons, not State restrictions.

Now, did she do that because she somehow hates the 2^nd Amendment and wants to replace it with her own beliefs, “make law” and ignore Stare Decisis?  If you think so, I suggest you read the opinion.

There is a Supreme Court case called Presser v. Illinois, 116 U.S. 252, 265 (1886).  Presser says that the Second Amendment applies only to Federal restrictions on weapons, not State restrictions.

So here is Sotomayor, a lowly Court of Appeals judge.  There is a case from a Court above her, the Supreme Court, which says the 2^nd Amendment does not apply to the States.

What would have her do?  Attempt to “make law?” Ignore precedent?  Have a lower Court attempt to overrule the Supreme Court?  Isn’t that what her detractors are afraid she might do?

Looks to me like she did what she was supposed to – she conceded that she can’t overrule the Supreme Court, and allowed the law as stated by the Supreme Court to govern the case before her -which by the way she has to do.

Do you have a problem with Sotomayor following the law?

With all due respect, Tommy, I couldn’t care less what Mitch McConnell and John Boehner say or do or, for that matter, what anyone else in Congress says or does, with the exception of Ron Paul.

I thought it was common knowledge that conservatives hate the Fourth, Fifth, Sixth, and Eighth Amendments. After all, how many times have we heard conservatives condemn or pooh-pooh such things as the Miranda warnings, the exclusionary rule, or a person’s right to counsel?

But if you want proof of this phenomenon, all you have to do is travel to the U.S. side of Cuba, where the Pentagon, with the full support of conservatives, has established a “judicial” system that is quite similar to the “judicial” system on Castro’s side of Cuba.

Think about it: If a person accused of terrorism is brought before the federal courts, he is accorded all the rights and privileges of the Fourth, Fifth, Sixth, and Eighth Amendments. If he is instead brought before the Pentagon’s new-fangled “judicial” system, he is accorded none of them.

Why is this so? Because the reason that the Pentagon established its “judicial” system in Cuba was precisely so that it wouldn’t have to comply with the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution in its treatment and prosecution of suspected terrorists. And that’s also the reason that conservatives have so ardently supported what the Pentagon has done in Cuba.

What better proof than that? Well, unless you’d like to get into such things as kidnapping, rendition, torture and sex abuse, indefinite incarceration, preventive detention. and illegal wiretapping.

But if you want more, consider what your conservative justices have recently done with respect to a person’s right to remain silent after retaining a lawyer. They expressly overruled a previous Supreme Court case which had held that under such circumstances, the police must stop questioning the suspect.

Where is the concept of stare decisis in such a decision? Where is the predictability in the law? It’s just one more example of how both conservative and liberal justices determine cases by how they “feel” rather than what the law and the Constitution dictate.

I didn’t say that Sotomayor would definitely fall on the side of the conservatives when it comes to civil liberties. I hope she doesn’t. As I pointed out, liberals, by and large, are better on civil liberties than conservatives.

As you know, however, sometimes justices turn out to be different from what everyone expects. Don’t forget that Souter turned out to be fairly good on civil liberties, much to the chagrin of the Republicans who appointed and confirmed him.

All I’m suggesting is that conservatives, who hate the due process provisions of the Bill of Rights, might end up being pleasantly surprised by Sotomayor’s perspective on civil liberties. As I pointed out, she was initially appointed to the bench by a Republican president. And let’s not forget that when it comes to civil liberties, Obama is turning out to be a disaster with his embrace of the war-on-terrorism powers that conservatives supported under Bush. So, I hope I’m wrong because civil liberties are vitally important to me and other libertarians, but it’s entirely possible that Obama has appointed someone he hopes will uphold his (and Bush’s) war-on-terrorism powers.

On gun control, I don’t know what Sotomayor’s philosophy is. But I can tell you that the Brady Campaign is praising her “history of gun control.” See here: http://tinyurl.com/oumbps

Moreover, Gun Owners of America is opposing the Sotomayor nomination based on the gun-rights issue. They’re citing a couple of gun-control cases in which she participated. See here: http://tinyurl.com/mrebcu

Finally, let’s not forget that liberals, by and large, are horrendous when it comes to gun rights. I fully realize that that doesn’t necessarily mean that Sotomayor is one of those liberals. But if you had to bet money as to where she would land on the issue of gun control, which way would you bet?

Responding to Jacob’s question to me, “Where is the debate?” the answer is the debate will be in the Senate Chamber, precisely where it belongs.

The debate over Sotomayor will not be on the radio and television appearances of  “Rush Limbaugh, Newt Gingrich, and Pat Buchanan” as Jacob brings up in his post. I am a fan of each, but will tell you from them will come the questions about Sotomayor, and occasionally the allegation.  Good for them and their freedom of speech. Make no mistake however the “debate” will come in the Senate Chamber.

Jacob falls pray to the misidentification of the Republican leadership the media foists upon him.  I scoff at the allegation that there is a leadership void in the Republican Party.  Since January 20, 2009 the leaders of the Republican Party have been its 2 leaders as recognized in Congress – Senator Mitch McConnell and Congressman John Boehner.

Why is it that the average American couldn’t pick McConnell and Boehner out of a lineup?  Because when the media asks rhetorically what Republicans are thinking, they instinctively seek comment not from them, but from “Rush Limbaugh, Newt Gingrich, and Pat Buchanan” (Buchanan, by the way, isn’t even a Republican, last time I checked).

Yet when the media rhetorically asks what Democrats think, they do ask Obama, Reid and Pelosi – never Olbermann or Chris Matthews.  The classic double standard.

Folks like Limbaugh and Ann Coulter are very insightful, but understand how not being elected officials and having provocative opinions as the wares they sell make them different than McConnell and Boehner.

McConnell and Boehner have to represent everyone of all political thought persuasions, where Limbaugh and Ann Coulter do not.  McConnell and Boehner have to get elected from the entire populace, where Limbaugh and Coulter do not.

Even when their ideas are the same as McConnell and Boehner, the packaging and presentation of those ideas will be different when Limbaugh and Coulter give them.

What was my “ah ha!” moment when I first realized, then independently confirmed, this media trick of never asking Republican elected leaders for a quote? When I read it in one of Coulter’s books, of course! So Jacob, at the request of Ann and me, if you are going to cite for me Republican thinking, give me a quote from McConnell or Boehner.

I’ve not heard McConnell or Boehner call for “all out opposition” to Sotomayor, as you assert the pundits have done.

Jacob’s assertion that Conservatives “hate the Fourth, Fifth, Sixth, and Eighth Amendments” comes conspicuously without any measure of proof as is his assertion that Sonia Sotomayor similarly will hate them.

Now is the time to show your cards Jacob – cite for me the written opinion where Sotomayor showed contempt for any of those Amendments. This debate is after all about what she believes.

Jacob should provide support for his fear that she will not support the 2^nd Amendment or the 5^th Amendment right against unlawful taking by Eminent Domain.  Which of her previous decisions, Jacob, supports these allegations?

As for the Mad Prefessah  – I’m truly honored that he quoted my view that a President should be allowed his nominee so long as she is legally qualified.

That was easy for the Mad Prof since he wants Sotomayor anyway.  The true test of his belief in the rule of law will be if he supported the nominations of Judge Alito and Judge Roberts.  Mad Prof has been a writer longer than I have.  I’m sure he has his prior writings on the Alito and Roberts nominations.  Or perhaps he simply recalls and can spare himself the research.

What was it Mad Professah – did you hold a similar view that Alito and Roberts should have been confirmed? Do you really believe in my quote that elections mean something, or did you quote me as a matter of current opportunity for your nominee Sotomayor?  I look forward to your response

Also Mad Prof – you have an interesting bit of misdirection in your post.  You assert that Republicans show concern over Sotomayor’s possible racism against white people, and then you cite the wrong quote.  You cited her contention that her ethnic background might influence her decisions.  That quote isn’t entirely troublesome – Sam Alito said the same thing at his confirmation hearing.

You know as well as I do the racist quote was this one by Sotomayor:

“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.”

Dr. Martin Luther King (the scion of a great Republican family by the way) dreamed we would judge one another by the content of our character, not our skin color.

The Sotomayor quote does the opposite:  She judges not the individual white judge, but lumps all white men into a group and ascribes to them a lesser characteristic on the ability to judge, lesser in fact than Latino women.

That is the very definition of prejudiced – meaning to prejudge.

So Mad Professor – since you brought up the Republican concern of racism, you owe it to us to bring up your thoughts on that Sotomayor quote being racist or not.

Please do!

Ron thinks that the president should consider such things as race, gender, and ethnic background when selecting a Supreme Court justice. That’s just plain nonsense. Would someone facing a bypass operation select a heart surgeon on that basis? Of course not. He would want the very best heart surgeon to operate on him, regardless of race, color, creed, gender, or ethnic background.

The same standard should apply to Supreme Court justices. Instead of searching for a person based on his race, sex, religion, ethnic background, or personal life experiences, the president should be nominating a person who has the best understanding of rights, the law, and the Constitution and who would take an activist, principled, and consistent approach to nullifying laws and actions that violate the Constitution.

Of course, if he did that, he’d have to name a libertarian since only libertarians take that position.

Sonia Sotomayor’s life story should be irrelevant. A judge has no business bringing his personal feelings, biases, and prejudices into the courtroom. His job is simply to interpret and apply the law. As the ancient saying goes, “Let justice be done, though the heavens may fall.”

Let’s look at a current-day example of where Ron’s philosophy takes us. A person buys a home and enters into a mortgage contract with a bank. In return for the bank lending the money to buy the house, the buyer agrees to make regular monthly payments on the loan. The buyer agrees that if he defaults, the seller can accelerate payment of the loan and foreclose the mortgage.

The economy goes south, the buyer loses his job, and defaults on the debt. Pursuant to the contract, the bank accelerates payment of the debt and initiates foreclosure proceedings.

The buyer sues, asking the court to enjoin the enforcement of the contract.

It would seem that Ron would say that the judge should draw on his own personal experiences in life in deciding the case. Maybe the judge struggled to get where he is, as Sotomayor has. That will enable him to empathize with the borrower. Maybe Ron would even want the judge to consider the sex, race, and ethnic background of the borrower. If the borrower is a member of a group that has been discriminated against in the past, maybe the judge should give him special consideration, especially if the bank is composed of white, upper-class, well-educated people.

That’s just more nonsense. What’s the point of having contracts if the courts aren’t going to enforce them? What’s the point of having laws if judges are free to ignore them whenever their biases and prejudices lead them to do so? Where is the predictability that the law should provide? Where is the rule of law when judges are free to decide cases in ad hoc manner based on their personal feelings?

In his dissenting opinion in Home Building and Loan Assoc vs. Blaisdell (1934) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0290_0398_ZD.html), Justice Sutherland described the duty of a Supreme Court justice:“I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned. Being unable to reach any other conclusion than that the Minnesota statute infringes the constitutional restriction under review, I have no choice but to say so.”

I agree with Tommy De Seno that elections have consequences. Since Barack Obama won the election and his party controls the Senate, the President should get his choice confirmed to the Court. Period. As De Seno says,

The time to block Sotomayor was last November with a vote for John McCain. [emphasis added] If you didn’t support McCain with as much vigor as it would have taken to make him win, or if you did not work hard enough to nominate a more conservative candidate than McCain – then this is your fault as well as mine. Sotomayor is as much a sign of our own failings as Barack Obama’s success.

What is instructive (and informative) here is how the Republicans are opposing Sotomayor. They are not debating the issues, they are debating the individual. Leading lights in the GOP are calling the first Latina Supreme Court nominee “racist” because she has had the temerity to say in public that she believes her background and experience will influence her judicial decision-making. Of course it does. Do we think she will be the first Justice to be affected by her life experiences before she was on the Court? Of course not!

In our country’s long history here have been 110 Justices on the Supreme Court and all but 2 have been male, and all but 4 have been white males. So when Republicans like De Seno say things like “ethnicity should [n]ever matter” regarding judicial selections it causes Democrats and liberals to laugh out loud. Are you kidding? Do you really think that it is “doesn’t matter” that the President has selected a non-white, female judge to be his first Supreme Court nominee? How convenient (and unsurprising) that a party that is overwhelmingly white and male would believe such nonsense.

Out in the real world, in the reality based community, when the President nominates a judge who has been on the federal bench for 17 years, graduated at the top of her class at Princeton University and was the editor of the Law Review at Yale University we understand that person is superbly qualified to become a Supreme Court Justice. And we are thrilled that when she does, the Court will look a little bit more like the America we live in.

I thought about letting Ron go second but after reading Tommy’s post, I decided there was no need to wait.

At first I was surprised over Tommy’s position. The last thing I expected was that he would essentially say that Republicans should let the Sotomayor nomination sail through, after a cursory examination into some of her beliefs. After all, other conservatives, such as Rush Limbaugh, Newt Gingrich, and Pat Buchanan, are calling for an all-out opposition to the nomination.

So, my initial reaction to Tommy’s position is: Where is the debate?

Well, let’s at least examine what we can expect from Sotomayor, especially compared to a conservative justice.

Consider civil liberties. We all know that conservatives hate the Fourth, Fifth, Sixth, and Eighth Amendments. They have long viewed them as nothing more than constitutional “technicalities” that let guilty people go free. In fact, that’s why conservatives so ardently support the Pentagon’s new fangled “judicial” system in Cuba for trying terrorism cases. It fulfills the lifelong dream of every conservative — bringing criminal suspects to justice without having to face such barriers as trial by jury, due process of law, habeas corpus, and prohibitions against hearsay and cruel and unusual punishments. Heck, if conservatives had their druthers, they’d turn over jurisdiction over all criminal cases, not just terrorism cases, to the Pentagon.

We all know that by and large, liberals are better on civil liberties than conservatives. But there’s always the possibility that Sotomayor could prove to be different than most liberals on civil liberties, which maybe is one reason that conservatives might want to heed Tommy’s advice to let her nomination go through. After all, let’s not forget that she was initially appointed to the bench by a conservative — George H.W. Bush. Let’s also not forget that Barack Obama has endorsed virtually all the war on terrorism infringements on liberty embraced by George W. Bush. Isn’t it possible that Obama would want another ally on the court to join with Scalia, Roberts, Alito, and Thomas to sustain such powers?

As a liberal, Sotomayor is likely to be horrendous on gun issues. Liberals have the same attitude toward the Second Amendment that conservatives have on the Fourth, Fifth, Sixth, and Eighth Amendments — that it should be repealed or ignored. Apparently this doesn’t bother Tommy, which perhaps isn’t too surprising given that many conservatives caved in and started favoring gun control a long time ago.

We also know that Sotomayor is likely to be bad on property rights issues, especially regulatory takings and eminent domain. People’s homes and businesses will continue to be under constant threat of being taken away to give to rich developers.

Finally, we all know that economic liberty will continue to be a dead letter, regardless of whether a conservative or a liberal is appointed to the court. Ever since FDR was able to achieve his statist revolution in the 1937 case of West Coast Hotel vs. Parrish, all we’ve had is a succession of one statist justice after another.

Don’t get me wrong. I’m not saying that a conservative lawyer would be better than Sotomayor. I’m saying that as far as individual rights and liberty is concerned, it really doesn’t matter whether a conservative or a liberal is appointed to the Court.

So, if it’s all the same to you guys, we libertarians will just keep yawning over your nominations to the Court. How about instead appointing a libertarian lawyer to the Court? Unlike the conservative and liberal, he would take a consistent and principled approach to defending individual liberty and the Constitution. My recommendations: Richard Epstein (professor of law at the University of Chicago), Randy Barnett (professor of law at Georgetown University), Jonathan Turley (law professor at George Washington University), or Andrew Napolitano (legal commentator at Fox News)

There is a simmering debate both inside and out of the Republican Party about how we conservatives should conduct ourselves regarding the Senate vetting of Supreme Court nominee Sonia Sotomayor.

Why there is a debate escapes me, because the answer is simple:  We should conduct ourselves they way we expected the Democrats to conduct themselves when President Bush nominated Samuel Alito and John Roberts to the Supreme Court.

I know the gut twinges at the thought of that, because we know the Democrats didn’t comply and acted as braying asses during those hearings, particularly Senator John Kerry who tried to filibuster Justice Alito’s nomination, an attempt supported by then Senator Barack Obama.

Since the dawn of our current two party system Democrats have had the Senate block 7 Supreme Court nominees:

Republican Ulysses Grant’s nominee Ebenezer Hoar was rejected by the Senate, 24-33.

Although Grover Cleveland was a Democrat, he had two nominees rejected at the urging of fellow Democrat David Hill over an internal Democrat squabble about the seat going to a New Yorker.

Republican Herbert Hoover’s nominee John Parker was rejected by a vote of 39-41.

Republican Richard Nixon’s nominee Clement Haynsworth was rejected 45-55, and G. Harrold Carswell was rejected 45 to 51.

Republican Ronald Reagan’s nominee Robert Bork was also rejected by the Senate.

In that time, Republicans have blocked exactly ZERO nominees of a Democrat President.

Democrats of recent vintage have tried vigorously to oppose other Republican nominees.  Justice Alito’s nomination made it out of committee on a 10-8 party line vote, and he was accepted by the Senate by a margin of only 58-42, still greater than Clarence Thomas’ razor thin 52-48 confirmation vote.

Compare that to the votes on President Clinton’s nominees Stephen Breyer – 87 to 9, and Ruth Bader Ginsburg – 96 to 3.

Republicans must protect our honored tradition of complying with the letter of the law on Supreme Court nominees.  We have the moral high ground for doing so.  Although I admit the temptation is great, we should not be moved by revenge against past transgressions of Democrats, nor should we wallow in the mud pit of political maneuvering to smear a candidate as Democrats so readily do, by way of example Clarence Thomas.  We are, in short, better than that.

Also, I’m a firm believer in the victor reaping the spoils in politics. Elections are supposed to mean something. If Obama wants her, and she has nothing that legally disqualifies her from service, he should have her no less than Bush was rightfully allowed to have Alito and Roberts. The time to block Sotomayor was last November with a vote for John McCain.  If you didn’t support McCain with as much vigor as it would have taken to make him win, or if you did not work hard enough to nominate a more conservative candidate than McCain – then this is your fault as well as mine. Sotomayor is as much a sign of our own failings as Barack Obama’s success.

I recall well our advice to Democrats to heed to the rule of law when Alito and Roberts were nominated.  We pointed out then, as we should be pointing out now, that if a nominee is legally qualified to be on the Court, the President has a right to his nominee, regardless of ideology.  We certainly DID NOT agree with Democrats who tried to block Alito and Roberts over how they perceived either man might come down on various issues.  We should not assume the wrongful Democrat position now.

The requirements to be on the Supreme Court are not spelled out in US Constitution Article III, which only establishes the Court.  It does have a “good behavior” clause, but to run afoul of that the Justice must be found guilty of “treason, bribery or other high crimes and misdemeanors.”  I’ve seen no proof Sonia Sotomayor has done so.

Going back to the Judiciary Act of 1789 and its later amendments, Congress has placed nothing in any statute spelling out requirements or disqualifications for Supreme Court service.

In short, absent “treason, bribery or other high crime or misdemeanors” the law anticipates a President will have his pick of Supreme Court Justice, and Republicans are the party that respects both America’s history and her laws.  Our past behavior on Supreme Court nominations proves it, and Democrat behavior proves they do not.

I’m cognizant of Republican history of being burned by following the rules and not playing politics with selecting Judges, particularly by failing to properly vet our own nominees.  Eisenhower nominated Earl Warren, noted as one of the most liberal justices of our time.  Nixon nominated Harry Blackmun, author of the intellectually dishonest opinion Roe v Wade.  Reagan appointed Sandra Day O’Connor and Anthony Kennedy while George H.W. Bush appointed David Souter – three justices anticipated to represent the Elephant who too often ran with the Democrat sheep.

The fix for our own failures in selecting nominees true to us is not to break the rules and bitterly oppose a Democrat’s candidate.  We just need to do a better job selecting our own.

Sotomayor is a liberal, and she said so in an interview in the 1980’s. Allowing Sotomayor through does no damage to America.  Since she is replacing a liberal in David Souter, the appointment will be of no consequence.  Minus 1 liberal plus 1 liberal = zero liberal gain on the Court. Were she replacing a conservative justice, I will readily admit the urgency of that might cause me some alarm.

Allowing her through without a knockdown drag-out fight allows Conservatives to make a hat-tip to Latinos, since Sotomayor will be the first Puerto Rican Supreme Court Justice. Not that ethnicity should ever matter, but you know as well has I do that as a consequence of perception, it will matter, since the Press will make it matter.

Of course they only do that to us.  When Democrats went after Alito the Press didn’t scream that the Democrats were anti-Italian.  The Press didn’t scream Democrats were anti-Black when they went after Clarence Thomas.  They will call us racist for opposing Sotomayor, and though the reality is that this is not true, truth does not diminish the risk we take in Latinos believing it just because the Press says it.  We can’t ignore the risk because we think it unfair.  We have to keep our heads out of the sand and deal with it until we someday urge the Press into acting fair.

What we do have here is a teaching moment for America.  We have the opportunity to put on full display our righteous understanding of how this process is supposed to work.

Should there be deeply probing questions of Sotomayor during the hearings?  Of course! That is part of the process.  If she turns out to be a racist, which some of her statements suggest, we can show that through measured questioning in the chamber, not by raw allegation thrown from outside the chamber, which does turn the electorate off.

Let us not be Ted Kennedy, the Chappaquiddick swim champion lecturing Clarence Thomas on how to treat a lady.  The public would rather us ask the questions with dignity, allow her answer them, and discover themselves if racism is a problem.  From my experience with juries as a trial lawyer, I’ve come to learn the public likes to make decisions themselves – not be told what decisions to make.

The reports that bother me most about her is that she is considered a “bully” toward lawyers and litigants. Unfortunately, I’ve watched that become more commonplace in Courtrooms in the age of television shows like Judge Judy. Judges now forget they are government servants no different than our Congress members. Judges have a special place in American government though – mouth off to your Congressman and it’s free speech; mouth off to a judge and go to jail. The problem stems from judges being appointed (which means the bench gets filled with political cronies and hacks) as opposed to being elected.

The best way to handle a bully judge, I’ve found, is to broadcast that she is a bully. There are ethics committees that handle such complaints, and if we keep a spotlight on her, she’ll have to tone it down and treat people with dignity and respect.

Let’s set the example and treat her that way during her confirmation hearing. We should be probing but fair during the process.  As usual I expect we Republicans, unlike Democrats, will bring the light and not the heat.