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Let's Get Serious -- Ask Sotomayor About the Constitution

By Peter RoffFellow, Institute for Liberty/Former Senior Political Writer, United Press International

President Barak Obama's selection of U.S. Court of Appeals Judge Sonia Sotomayor was the predictable choice. And the predictability was one of the reasons her name was mentioned so prominently, and frequently, in the media in the weeks and days leading up to her actually being selected.

In a sense, Sotomayor's nomination is another manifestation of what some scholars and commentators refer to as "identity politics," a game the Democrats play so very, very well.

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Since Sotomayor is highly unlikely to disrupt the high court's delicate ideological balance, both sides have been given an excellent opportunity to restore civility to judicial confirmations.
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Her nomination, without any real discussion of her record as a jurist, was immediately hailed with all the predictable buzzwords, including the ubiquitous "historic." But does her life story, which everyone acknowledges is compelling, really qualify her to sit as one of nine citizens empowered to judge the constitutionality of the nation's laws? How does being a woman or being the first person of Puerto Rican ancestry to be nominated qualify Sotomayor for a lifetime appointment to the highest court in the land?

These are questions well worth debating, indeed questions that are being debated right now but which, in fact, have little to do with her confirmation.

In choosing Sotomayor, President Obama has chosen a reliably liberal judge to replace a reliably liberal justice, David Souter, whose appointment is one of several inerasable black marks on President George H. W. Bush's record. But changing one for the other is not likely to upset the current balance on the court all too much.

Obama could have picked a jurist or legal mind who would be a game changer - like former Yale Law School Dean Howard Koh or former acting U.S. Solicitor General Walter Dellinger - bringing to the court a liberal legal intellect equal to that of conservative Justice Antonin Scalia. This is not to suggest, by any means, that Sotomayor is not intelligent -- but it does appear from the record thus far that she is not only Souter's ideological equal but his intellectual equal as well.

Predictably again, liberal organizations have already rallied around her nomination, praising, again, her life story as though it is somehow sufficient to guarantee her confirmation by the U.S. Senate. Perhaps Justice Clarence Thomas would like to weigh in on this theory.

At the same time conservative organizations outside the Senate have already weighed in against the nomination suggesting that -- on the basis of the same thin evidence that liberals have used to praise her -- Sotomayor is unqualified, lacks the proper judicial temperament for the position to which she has been nominated, and that she is an activist judge. And this response is just as predictable as the embrace Sotomayor received from the liberals.

In fact the whole process is becoming all too predictable. A liberal president nominates a liberal jurist and conservative organizations marshal their forces trying to stop the nomination. A conservative president nominates a conservative jurist and liberal organizations marshal their forces trying to stop the nomination. And, though it is fair to say that President George W. Bush's nominees to the federal bench at the circuit court level were treated in an especially shabby fashion, in the end the ongoing battle for control of the Supreme Court has only served to poison the whole process.

Since Sotomayor is highly unlikely to disrupt the high court's delicate ideological balance, both sides have been given an excellent opportunity to restore civility to judicial confirmations. The Senate should be given, as Senate Republican Leader Mitch McConnell of Kentucky said Tuesday, "adequate time to prepare for this nomination" so that "a full and fair opportunity to question the nominee and debate her qualifications" can occur. And perhaps help create an atmosphere in which a judicial nominee's beliefs about the role of a federal judge and their obligations to the U.S. Constitution are once again the paramount concerns.

It is true, as both sides agree, that the stakes are rarely as high as when a vacancy on the United States Supreme Court needs to be filled. And that is all the more reason to have a serious discussion about the Constitution, what it means, and how what it says is to be applied to the issues that face the nation today rather than engage in yet another political food fight.

Peter Roff, a former senior writer at United Press International, is a senior fellow at Frontiers of Freedom, an organization that advocates for educational freedom and reform.