To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Thursday, October 29, 2020

New Observercast

Constitution First, Last, Always

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BY DANNY M. ADKISON

They were for her before they sort of weren’t for her. Now they will tolerate her.

Our next Supreme Court justice will be entering office without the support of most conservatives and with the reluctant support of liberals. This, in spite of the fact that the most important comment Sotomayor made has been largely ignored.

Prior to the beginning of the Senate hearings over Obama’s nominee to fill the position vacated by the retiring Justice Souter, Senate Republicans were sounding alarms about Sotomayor’s judicial record and comments made in speeches.

The judicial record was mostly a reference to her participation in what would become the Supreme Court’s Ricci decision. The judge in the U.S. District Court, where the case originated, ruled in favor of the city [against the white firefighters]. The U.S. Court of Appeals [Second Circuit], on which Sotomayor served, unanimously upheld the District Court’s decision. Five of the nine Supreme Court justices reversed this decision.

This means that of the 13 federal judges who examined the Ricci case, five voted one way and eight voted another. Sotomayor voted with the eight. Perhaps realizing the futility of opposing Sotomayor on the one major “smudge” on her judicial record, Republican Senators soon dropped their opposition to her using the Ricci case. They were more persistent in their arguments that in her speeches she had demonstrated a tendency to allow her ethnicity to fog her judgment. On the second day of the hearings Sen. Lindsey Graham of South Carolina noted, “You have these speeches that just blow me away.” This was primarily a reference to Sotomayor’s now famous “Wise Latina” remark.

In the end, Graham appeared to be won over with Sotomayor leaning his direction [literally leaning on him as she maneuvered for the back exit of the hearing room]. You knew things seemed to be going Sotomayor’s way when the Republican senator from Oklahoma [Tom Coburn] serving on the Judiciary Committee concluded with the remark, “I’m mighty impressed.” [He is still voting “no.”]

It turns out that the liberal intelligentsia, in the days following the conclusion of the hearings, not so much. One resurrected the title of Jimmy Carter’s 1976 campaign autobiography to suggest Obama did not seek the most qualified individual in filling Souter’s vacancy; its title was “Why Not the Best.” Liberal editorials, while describing her as well-qualified qualified, often qualified their seemingly total support with “in spite of” remarks.

Not once did any note the most revealing and most important comment Sotomayor made concerning her nomination and possible tenure on the Supreme Court. She did, it turns out, reveal a bias. It wasn’t a Hispanic bias. Nor an ideological or partisan bias.

What team was she supporting?

“I’m going to be playing for the Constitution team,” Sotomayor said.

Nominees, of course, must be qualified, and as even conservative Republicans on the Judiciary Committee pointed out, there is no doubt but that Sotomayor is. After all, the Supreme Court has the power to declare laws and acts of government officials “null and void.” But as The Federalist Papers pointed out before our republic began, this does not make the court superior to Congress or the executive; it makes the people superior to both [remember, that document begins with “We the people”].

If, that is, the justices show fidelity to the Constitution. Sotomayor has unequivocally and enthusiastically endorsed that approach. This means for Sotomayor the Constitution will not mean what the justices say it means, but rather the Constitution will mean what it says.

Dr. Danny M. Adkison teaches constitutional law at Oklahoma State University and is a regular contributor to The Oklahoma Observer

Arnold Hamilton
Arnold Hamilton
Arnold Hamilton became editor of The Observer in September 2006. Previously, he served nearly two decades as the Dallas Morning News’ Oklahoma Bureau chief. He also covered government and politics for the San Jose Mercury News, the Dallas Times Herald, the Tulsa Tribune and the Oklahoma Journal.