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Obama nominates Sotomayor to high court
Posted on May 26, 2009 | by Michael Foust

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WASHINGTON (BP)--President Obama nominated Sonia Sotomayor Tuesday to the Supreme Court, sending to the Senate the name of someone who has a thin paper trail on social issues and who would become the high court's first Hispanic.

Sotomayor, 54, is Obama's first nominee to the Supreme Court and would replace retiring Justice David Souter. She has served on the U.S. Second Court of Appeals since 1998 and was nominated to that branch by President Clinton. From 1992-98 she served as a trial court judge, a position she took after being nominated by President George H.W. Bush at the recommendation of former Democratic Sen. Daniel Patrick Moynihan under a compromise between the two parties.

The daughter of Puerto Rican parents, Sotomayor -- should she presumably join the court's liberal bloc -- would not change the ideological makeup because Souter also was a member of the liberal wing.

Conservatives have criticized controversial statements she has made in the past, including telling a group of college students in 2005 that the "court of appeals is where policy is made."

Obama, though, focused solely on her life story, particularly how her parents moved to the United States during World War II and how she grew up in a public housing project in New York City. Her father died when she was 9, after which she was raised by her mother.

During a White House ceremony, Obama called her "an inspiring woman who I believe will make a great justice." He also said Sotomayor has had a "distinguished career."

"I don't take this decision lightly," Obama said. "I've made it only after deep reflection and careful deliberation."

Sotomayor may be best known to the American public as the federal judge who during the 1990s helped end the professional baseball strike. But she's been in the news in recent months for her role in a case that is currently before the Supreme Court.

In that case, the fire department for the city of New Haven, Conn., gave a written exam to firefighters to determine promotions. When the city learned that no black firefighter scored high enough to be promoted, it threw out the test. A group of white and Hispanic firefighters who would have been promoted sued, claiming reverse discrimination. Sotomayor was part of a three judge panel that ruled against the firefighters. The Supreme Court heard oral arguments in April.

"Of the people that have been mentioned as possible selections, she's the most unabashedly liberal," Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, told Baptist Press. "... She is a poster child for President Obama's desire to have judges who will have empathy with some groups, which means less empathy for other groups. Lady Justice is blind for a reason. She has a blindfold on because she's supposed to be impartial, not empathic. Empathy belongs in the legislature and in the executive branch, and not in the judicial branch. Sotomayor is a living, breathing example of making the law subjective and relative, rather than objective and impartial."

Land added, "One of the longest lasting and most painful penalties the American people will pay for their love affair with Barack Obama are his judicial nominations. This is case one."

On the issue of abortion, Sotomayor has written little as a justice. In 2002 she ruled against an abortion rights group in a long-shot lawsuit that sought to overturn President George W. Bush's implementation of the Mexico City polity, which banned federal funds for organizations that perform or promote abortions in foreign countries.

The president of one of the nation's leading abortion rights groups, Nancy Keenan of NARAL Pro-Choice America, released a statement saying Sotomayor has a "distinguished record" with an "impressive personal biography," although Keenan didn't automatically give the nominee the thumbs up.

"We look forward to learning more about Judge Sotomayor's views on the right to privacy and the landmark Roe v. Wade decision as the Senate's hearing process moves forward," Keenan said.

Conservatives, though, aren't holding out hope that Sotomayor will side with them very often. In 2005 as part of a panel discussion, she told a group of college students at Duke University, "All of the legal defense funds out there, they're looking for people with court of appeals experience because ... court of appeals is where policy is made." She quickly realized what she had said and added, "And I know this is on tape and I should never say that because we don't make law -- I know.... I'm not promoting it and I'm not advocating it."

In another often criticized statement, in 2001 she was analyzing a quote from then-Supreme Court Justice Sandra Day O'Connor when she said, "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 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 experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, said in a statement, "Judge Sonia Sotomayor's record of support for judicial activism offers little comfort that she will be a friend to the unborn on the Supreme Court."

On the other side of the ideological spectrum, Evan Wolfson, executive director of the homosexual activist organization Freedom to Marry, applauded the nomination.

"From everything I know, Judge Sotomayor is an outstanding choice -- fair and aware, open and judicious," Wolfson was quoted as saying in Bay Windows, a homosexual newspaper. "I believe she has the demonstrated commitment to principles of equal protection and inclusion that defines a good nominee to the Supreme Court. In choosing Judge Sotomayor, the first Latino candidate for the Supreme Court, President Obama has made a strong and appealing nomination that should and will receive the support of those committed to equality for lesbians and gay men."

During his speech introducing Sotomayor, Obama seemed to try to win over conservatives, saying he wanted a justice who has "a recognition of the limits of the judicial role" and an "understanding that a judge's job is to interpret, not make law." He added he wanted a justice who approaches "decisions without any particular ideology or agenda but rather a commitment to impartial justice, a respect for precedent and a determination to faithfully apply the law to the facts at hand."

Asked about that comment, Land said, "I've learned through observation that it is best to pay attention to what President Obama does, not what he says."

Land also said he would not support calls by some conservatives for filibustering Sotomayor's nomination.

"Filibusters are fine for legislation, but when it comes to judicial nominees, there is no supermajority required in the Constitution," he said. "Senate rules should never trump the Constitution. The Constitution says that the president has the right to nominate judges and the Senate has the right either to confirm or deny confirmation -- not to require a supermajority. It would be the height of hypocrisy for us having opposed filibusters in one administration to support them in the next. So the judges that Barack Obama nominates should get a fair and complete hearing before the Senate and should get an up or down vote."

Land was particularly critical of Sotomayor's position in the case of the New Haven, Conn., firefighters.

"Justice Roberts said it best: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Land said. "Sotomayor will be for affirmative action, quotas, set asides. That's the business end of empathy. In the business end of empathy, some people get discriminated against in favor of other people."
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Michael Foust is an assistant editor of Baptist Press.
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