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Ross Nelson, Published July 19 2009

Nelson: Sonia Sotomayor just another brick in the wall

Sonia Sotomayor is a lock to be the next U.S. Supreme Court justice, barring catastrophe. A great deal has been said about her Latina ethnicity and her comments about judging from that ethnic perspective. What we need to keep in mind, though, is the disappointing fact that it is her very mundane views as a judge that should alarm us, not any supposed bent.

In her now-famous lecture given in 2001, Sotomayor uttered the “rhetorical flourish that fell flat”: “I would hope that a wise Latina woman with … her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” She further implied that her experiences as a Latina woman would affect the facts she chose to see and that “I simply do not know exactly what that difference will be in my judging.”

Like so many of her peers she contradicts herself without appearing to realize it. Is she merely reflecting the widespread opinion that different races, genders, and ethnic groups see the world differently, even in the way justice is administered? But if so, how can she believe that one person can reach “a better conclusion” than another? The black hole of relativism consumes its author as well as its objects.

The point has already been made clear by the alleged necessity to have women and black Supreme Court justices in order to fairly interpret the law. It turns out that justice is not only not blind, but diverse.

She might have been playing to the audience with her “wise Latina” statement, but what of her observation that appeals courts make policy (rather than merely interpret and apply the law)?

Sotomayor has shown herself very much a member of the establishment when it comes to the use and abuse of eminent domain. In Didden v. Village of Port Chester, she was part of a judicial panel that supported an outrageous taking of property for a private developer, what constitutional scholar Richard Epstein called “out-and-out extortion.” She seemingly has no quarrel with stretching eminent domain powers beyond any kind of semblance to the original “public use” requirement.

She’s limited in what she can do as an appeals court judge, but we should wonder what her unshackled opinion as a Supreme Court justice would be about the Second Amendment. Although she was technically correct that the federal government has long considered the amendment not binding on the states themselves, has she ever wondered on what bizarre theory of incorporation the Supreme Court makes some parts of the Bill of Rights binding on the states, and others not?

Sotomayor is not quite the scary monster some make her out to be. In fact, it is her very blandness and casual acceptance of reigning judicial ideas and errors that will make her yet another brick in the wall put up against the Constitution, and our rights.

Nelson is a Fargo postal worker and regular contributor to The Forum’s commentary pages.