Scott Spiegel

In light of Justice Sonia Sotomayor’s Supreme Court confirmation hearings this week, in which the controversial nominee must face tough scrutiny from senators of both parties on her judicial philosophy, temperament, and fidelity to the rule of law, political commentators on the left are naturally busy suggesting harsh, delegitimizing questions for… Frank Ricci!  The lead New Haven firefighter in the Ricci v. Destefano racial discrimination lawsuit, who will testify in the hearings, has been attacked by Slate magazine, among others, for having previously brought lawsuits against former employers for discriminating against him due to his dyslexia and for firing him for being a whistleblower against his department.

Ignoring the fact that Ricci’s earlier lawsuits have zero legal bearing on the arguments in the Ricci v. Destefano case and that the Supreme Court recently overturned Sotomayor’s ruling against Ricci, why should the other 17 firefighters in the lawsuit suffer if it so happens that Ricci was lawsuit-happy with his previous employers?

Speaking of those other firefighters, Lieutenant Ben Vargas, who will also testify at Sotomayor’s hearings, is the Hispanic firefighter who joined 17 white firefighters in the lawsuit against the New Haven fire department.  Vargas shares some superficial similarities with Sotomayor: both are Hispanic; both were born and raised in the U.S.; both have Puerto Rican parents who came here because they were poor.  Both grew up in troubled, high-crime, urban neighborhoods in the Northeast; both found a way out of their circumstances through hard work in their chosen career paths.

That’s where the similarities end.

Vargas considers himself an American first and foremost; as he said in an interview with the New York Times, “I love my people.  I love my culture…  But I am so grateful for the opportunity only the United States can give.”

In a speech on Hispanics in the justice system, Sotomayor said, “America has a deeply confused image of itself that is in perpetual tension…  [We] insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.”  Which other contexts are those, Justice Sotomayor—putting out fires in a racially sensitive way?

Vargas was hired by the New Haven Fire Department in 1994 as a result of a discrimination lawsuit brought by black firefighters, but he opposes affirmative action in principle and would prefer to have been hired in a race-neutral context (and believes he may still have been hired if he had been afforded a colorblind assessment).

Sotomayor admits that she benefited from affirmative action and continues to support the policy.

Vargas, as a result of joining the Ricci v. Destefano lawsuit, received no support from the New Haven Hispanic firefighters’ association, of which his brother is a member.  Vargas had the courage to leave the association.

Sotomayor served for 12 years in leadership positions, including setting policy, on the board of the Puerto Rican Legal Defense and Education Fund, which, among other dubious accomplishments: (1) defended during her tenure several Puerto Rican separatists who had injured five legislators in a terrorist attack on the U.S. House of Representatives and (2) has a close working relationship with ACORN, the community organization that has been indicted numerous times for violating federal and state laws.

Vargas, after joining the Ricci lawsuit, was physically attacked by a fellow black firefighter in retaliation for his action.

Sotomayor upheld, with summary judgment, New Haven’s dismissal of the promotion exam on which Vargas and 17 white firefighters excelled, a dismissal motivated by the fact that no black firefighters did well enough for imminent promotion.

Vargas was ridiculed by fellow firefighters as an Uncle Tom for joining the lawsuit.

Sotomayor had no qualms about slapping down Uncle Tomás for thinking he could advance in his career based on his merits.

Vargas bravely remained in the New Haven fire department despite the tension and resentment displayed toward him by other firefighters.  He fought his battle for five years, until most of the department eventually came around to his position.

Sotomayor raised enormous controversy over her position and angered Americans who believe disparate racial results alone should not be used to conclude that discrimination has taken place.

The New Haven Hispanic firefighters’ association publicly reversed its opposition to Vargas’ position when the Supreme Court decided to take up the lawsuit, even before the Court decided the case in his favor.

Sotomayor’s position, presumably influenced by her experiences as a “wise Latina,” was abandoned by the Latino organization that represents Vargas’ profession.

Finally, the Supreme Court ruled in Vargas’ favor and overturned Sotomayor’s summary judgment 9-0.

In the New York Times interview, Vargas said, “I want [my three sons] to have a fair shake, to get a job on their merits and not because they’re Hispanic or they fill a quota.  What a lousy way to live.”

In her aforementioned speech, which tacitly supported Hispanic and female quotas in the federal judicial system, Sotomayor said with respect to her profession, “[Some believe] that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law…  I wonder whether achieving that goal is possible in all or even in most cases…  [We] may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning…  Whether born from experience or inherent physiological or cultural differences… our gender and national origins may and will make a difference in our judging” [emphasis added].

What a lousy way to judge.

How did the Republican Party’s approach to dealing with objectionable Supreme Court nominees come to resemble the Democrats’ strategy for the war on terror: scorn anyone who says anything critical of the opposition and settle for second-class citizen status, dhimmitude-style?  Are Republicans trying to balance Obama’s cooption of Bush’s war policy to restore some kind of harmony in the universe?

Over the past week, we’ve been treated by Republicans to a range of subtle and nuanced political stratagems for dealing with the nomination of Sonia Sotomayor, including: shut your mouth, don’t speak, zip your lip, don’t make waves, and while you’re at it, don’t say anything.  This, from the party of “hawks” who bravely fought and won the Civil War, the Cold War, and the Battle of Chad.

Let’s examine the reasons offered by Republican turncoats why we should not tender a whisper against the Sotomayor nomination:

It’s mean-spirited. Well, Democrats successfully mobilized before Reagan’s fourth Supreme Court nomination, Robert Bork, savagely vowing to form a “phalanx of opposition” against anyone at all Reagan deigned to choose.  Democrats tried to destroy George W. Bush appointees John Roberts and Samuel Alito but failed only because they lacked the votes (at least they managed to invade Roberts’ family’s privacy and make Samuel Alito’s wife cry!).  The Republicans have not opposed a Supreme Court nominee by a Democratic president since 1968.  I think that at least qualifies as “sporting.”

It’s immature. In the Wall Street Journal, Peggy Noonan scolds Republicans for not “play[ing] grown-up” and calls those who want to fight against Sotomayor’s nomination “idiots” who refuse to “think” or “dress the part.”  Let’s see: Five members of the Supreme Court have the power to make sweeping, life-or-death decisions that affect hundreds of millions of Americans and countless future generations.  I think raising forceful objections to Sotomayor’s judicial philosophy and temperament comes down more on the adult side than “She has cooties!”

The Republicans will lose independent voters. Republicans have most often converted independent voters and won elections when they have stuck to the party’s principles rather than offering a watered-down version of the Democratic party line, as in November 2008.  So remind me: How will consistently standing up and making a compelling case for their views cause Republicans to lose voters who are looking for a party that can offer consistent, compelling views?

The Republicans will lose political capital. Obama’s political goodwill toward Republicans began and ended with inviting John McCain to the White House for bean dip on Super Bowl night.  Congressional Democrats’ political goodwill toward Republicans has yet to materialize, and never will until Republicans regain both houses and Democrats are on the defensive again.

Sotomayor is not that liberal. Just as Obama is the most leftist president we’ve ever had, Sotomayor would be the most leftist justice on the current Court, even more of a liberal activist than Ginsburg, Breyer, and Stevens, who seem like Daughters of the American Revolution in comparison.

Sotomayor won’t change the balance of power on the Court. Both Souter and Sotomayor are liberal on social issues, but they are not both liberal on economic issues.  Souter is no Steve Forbes, but Sotomayor’s ruling in the shocking Port Chester “eminent domain” private property grab places her ideologically to the left of Marx.

Republicans will lose the Hispanic vote. Putting aside the condescending “voting bloc” mentality this ascribes to Latinos, it should be noted that Democrats weren’t worried about losing Hispanic votes when they opposed Bush’s nomination of Miguel Estrada to the D.C. Court of Appeals in 2002—indeed, they had enough stomach for the fight to wage seven filibusters against bringing him to a vote.  If Republicans are concerned about losing Hispanic votes, I suggest they offer the thoroughly vetted Estrada as their preferred nominee.

Sotomayor has an impressive resume. Newsflash: So do a lot of people!  I would wager that the number of potential nominees who went to top-tier undergraduate and law schools and managed to get a few employers and coworkers to say nice things about them numbers—oh, at least two or three.  Also, Sotomayor’s supporters defend against the charge that a majority of her appeals court decisions were overruled by the Supreme Court by stating that such cases are difficult—yet we are now expected to support her addition to the same team of justices who are capable of correcting the types of rulings she screwed up.  Finally, as Andrew McCarthy points out, Sotomayor’s ravings about the superior decision-making ability of certain races and genders doesn’t even quality her to be on a jury, let alone the Supreme Court.

Her confirmation is inevitable. The Supreme Court will be ruling on the Ricci v. Destefano firefighter discrimination case in June, weeks before Sotomayor’s confirmation hearings.  It is expected that the Court will overturn the decision Sotomayor supported, thus further energizing opponents of legalized racism (i.e., “Americans”).  Republicans should also remind the nation that Obama hasn’t demonstrated the most thorough vetting acumen in his first few months in office, having nominated a “phalanx” (if you will) of tax cheats and ethically challenged miscreants to Cabinet and other posts.

How about this strategy for dealing with the current nominee?  I say that even if Sotomayor’s resume is as long as the phonebook; even if someone makes a persuasive case that she’s not the most liberal justice in the world; even if Republicans are accused of being mean-spirited and immature; even if we lose a few wishy-washy independents, have a few Hispanics look at us askance, and ruffle a few Democratic feathers; and even if it’s not 100% certain that her confirmation can be stopped; the Republican party should fight this nominee kicking and screaming, hammering home the message about her record until her supporters get tired of brushing it under the rug, until we’ve made our point to the American public.

And they say the Republican Party doesn’t have any fighting spirit left.