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Hiring decisions can be difficult or relatively simple, depending on the nature of the job. It can be easy to hire someone to pick up litter in a park; almost anyone can do that. Even if the person hired does a poor job no long-term damage is done and it’s easy to replace him. However as the job gets more complex, the difficulty of finding the right person increases, as does the potential damage he can do. A corporate chief executive officer can ruin a company in a hurry. There are not many people available who can and will do the job right. For that reason companies looking to hire a CEO usually take a long time and carefully evaluate potential candidates.
The hiring of a justice of the Supreme Court is more important than hiring a corporate CEO, maybe even more important than hiring a president of these United States. Justices receive lifetime appointments and are essentially accountable to nobody. A vote of five justices decides a case, making it the law of the land. There is no appeal. That makes each justice effectively one fifth of a dictatorship. It is a position of extreme trust and with the ability to do a lot of damage. This is not a position for which we can take a chance and replace the person in a few years if we don’t like the outcome. Selection of justices has to be done right, and done right the first time.
That means we should not just make sure there is no evidence against a potential justice. We must make certain that the person is qualified. This is not a criminal trial in which the appointee is innocent until proven guilty. Instead all candidates should be considered unqualified until shown beyond reasonable doubt to be qualified. The burden of proof is on the candidate and his or her supporters. I repeat here the five requirements I regard as mandatory for such justices:
1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.
4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.
5. Sound knowledge of the law and the constitution.
I’ll be up front about the fact that I do not believe Judge Sotomayor is qualified to be on the Supreme Court. In fact I think there is evidence she does not meet two of the above requirements. She does seem to have great intellectual ability and a sound knowledge of the law so she probably meets requirements 4 and 5. I have no knowledge of her integrity so will hope that suitable investigation has been done on that score. However her commitment to the constitution and her ability to subordinate personal preference to that constitution appear to be lacking. Sadly, she seems willing to apply her stated racist views to court decisions.
The most cited case of this was Ricci v. DeStefano. This New Haven, Conn case involved firefighters denied promotions they had qualified for simply because not enough minorities qualified. I discussed that case in my last blog so I won’t repeat it here. I will, however, reiterate that Sotomayor’s acceptance of what amounts to a racial quota shows a disregard for the equal protection clause in the 14th amendment to the constitution. She failed to defend the constitution in that case.
Sotomayor is also a member of the National Council of La Raza, a Hispanic organization that strongly supports “affirmative action.” What affirmative action has come to mean in practice is that one group is passed over for employment or promotion in order to fill the quota of minorities. A friend of mine is a manager in a large company. He tells me that their human resources department regularly refuses to let him hire the person he regards as most qualified. The reason? Simply because that person happens to be a white male. His company has been cowed into taking those measures because both government officials and many independent civil rights organizations regard affirmative action as requiring de facto quotas. That is a clear violation of our constitution.
The most important job of the Supreme Court is protection of the constitution. Any justice who allows his or her own preferences or beliefs to supercede the constitution is a danger to the country. We need justices who can make decisions they hate and disagree with but which are what the law and constitution require. Oliver Wendell Holmes was such a justice and has left a legacy to be worth emulation. Will Sotomayor do that? Sadly, her record indicates otherwise.
We should all contact our senators and urge them to carefully evaluate Judge Sotomayor’s beliefs and judicial qualifications, especially her commitment to the constitution. If she fails the test of commitment to the constitution, she should be rejected.