I freely admit that prior to her nomination, I knew absolutely nothing about Sonia Sotomayor. I haven’t followed her career, and even if I hadn’t been too young to have been around for her last appointment eleven years ago, I still wouldn’t have followed an appeals court appointment hearing. Though her nomination wasn’t a surprise to anyone (in fact, people have been saying she was going to be on the Supreme Court for over a decade now) I simply haven’t the interest nor the time to follow the confirmation hearings and rulings of the rising stars of the judiciary.

The Supreme Court, however, definitely sparks my interest and definitely warrants close scrutiny. So, with this in mind, I began forming an opinion the way I usually do. I take the arguments from both sides; apply logic, common sense, and a bit of research to them; and come up with what is typically an extremely contrarian point of view.

With the routine page from my proverbial play book pulled out, I began writing this blog entry with the usual talking points in hand. I carefully studied both sides to her nomination. Conservatives and Republicans alike say she’s an activist (interestingly, they provide relatively little proof of this), a liberal (as if Obama was going to appoint a conservative nominee), and a racist (which I’ll get to in a bit). Liberals and the Democrats counter that Justice Souter is more of an activist than she is (as if hypocrisy that excused anything), she has “empathy” (whatever that means – I don’t think it has any bearing on the law at any rate), and that her cultural background would add diversity to the Supreme Court (she’s not racist, we are – good job guys).

Ultimately, there were two real allegations about Sonia Sotomayor. 1) She is a racist. 2) She is an activist. And thus I began to apply an acid test to these little nuggets of rhetoric to find which was pyrite and which was gold.

Sotomayor Displays A Clear Pattern Of Racism

I would like to note, before I begin, that a single act of racism does not a racist make. Several acts do indicate a pattern of behavior, however, and ultimately we are the sum of our actions. Any one of the the allegations against Sotomayor, if she would denounce them, I would be willing to forgive – but we are not dealing with a single act and she does not denounce them. She dismisses each example as a triviality. Unfortunately, many such trivialities combined together over a long period of time do not indicate a simple mistake. Sotomayor’s racially motivated behavior is not a mistake. It is not a slip. It is a pattern that one can only admit amounts to racism.

I’ll break this down into bullet points to make it more digestible.

1) Everyone has seen her “wise Latina woman” comment. The comment was not taken out of context. She does not deny making it. She does not repudiate the comment. Her comments were not unscripted or off the cuff. In fact, the entire speech was about diversity and how it related to the judiciary.

It should be noted that, on top of all of the above, that her comments were not an isolated incident. She used the line in many of her speeches. While the original and often quoted line comes from published remarks she made in 2001, she admits to using such lines often and, according to CNN, repeated the same comments in 1994, 1999, 2002, and 2004. There is a clear and unmistakable message in this dialogue and it is thus: Women are smarter than men, and minorities are smarter than whites.

2) That wasn’t the only questionably racist comment Sotomayor made in that speech. Here are some excerpts you may have missed from that same 2001 article:

• “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
• “The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.”
• “The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases.”
• “Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging,”
• “I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment”
• “Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion.”

I could be reading my bias into her comments, but it seems to me that it is far more likely that her comments, prepared as they were and repeating the same message over and over again, very clearly paint a picture of a woman who sees the world through a racist perspective.

3) Sonia Sotomayor unequivocally supports affirmative action. Again, I don’t think everyone who supports affirmative action is a racist, but I do believe that the philosophy of affirmative action is blatantly and illogically racist. I can understand how an otherwise-enlightened person may be seduced by misinformation to make them somehow believe that such a program would help society more than it would hurt, but again, when put into a larger context, it is further proof that she is, in fact, a racist.

4) Sonia Sotomayor was a member of the Belizean Grove, a group of female-only professionals that seeks to create a social network of powerful women. While I believe the group is harmless, it doesn’t help speculation about the pattern of sexism Ms. Sotomayor has established.

5) Sonia Sotomayor is a member of La Raza. Okay, so I’m willing to overlook a lot of things. I’m not going to blame one person for every single thing a group does. I’m willing to believe that just because you’re a member of an organization, you don’t have to agree 100% with absolutely everything they say. I don’t think every member of the NRA is a machine gun wielding militiaman. I don’t think everyone who sends money to PETA is a terrorist. I don’t think every member of the AARP is a liberal whack job. That said, when you join an organization, you support at least a majority their agenda. If you didn’t, you wouldn’t join.

La Raza (the English translation for La Raza is “the race”) is a Hispanic advocacy group. They are one of the strongest supporters of illegal immigrants rights, advocating the issuance of drivers licenses, administering free health care to illegals, argues against requiring immigrants to register with the government, argues against work-place enforcement of immigration law, and amnesty. Originally, La Raza was a Mexican-only organization, not open to other Hispanic ethnicities until 1975. It is closely linked to radical groups such as MEChA (whose motto translates to “For the race everything, outside the race nothing”) and has been repeatedly accused of supporting separatist and militant groups. While La Raza insists that it fights for equality, it does so in a racially charged “us before them” way.

I don’t for a second think that Sotomayor supports anything so evil as all of that, but it raises some serious questions. I might even overlook it entirely, but when you look at her membership in light of everything else, I can’t help but put two and two together and assume she supports their racially charged agenda.

6) Sonia Sotomayor believes the death penalty is racist. As part of the Puerto Rican Legal Defense and Education Fund (PRLDEF), which is now known as LatinoJustice, Sotomayor co-authored a memo sent to the Board of that fund which reads in part, “Capital punishment is associated with evident racism in our society.” The memo was not turned over to the Judiciary Committee (as required) until after the New York Times reported its existence.

7) Ricci v. DeStefano, the recently overturned firefighters discrimination case, was not Sotomayor’s first flirtation with enabling reverse-racism at the work place. The PRLDEF, brought exactly the same types of cases against employers. Ms. Sotomayor was a member of the PRLDEF for 12 years and sat on their legal advisory committee, making her one of the most influential advisors to the organization. In 1984, the PRLDEF sued the New York City Police Department alleging unfair promotion standards. The case was settled with the department agreed to promote 100 black officers and 60 latino officers to a higher rank. In 1988, the group again clashed with the police department, pressuring it into changing its exam and lowering its standards for the express purpose of allowing more minorities to pass. The same group also filed lawsuits against the New York Fire Department and the sanitation department.

Actively Seeking Activism

All of the allegations of racism, as vile and disturbing as they appear to be, and as damming as they seem when stacked next to one another, are only half of the criticism levied against her. The other half of the equation is the conservative criticism that she has been and will be an activist judge.

Here’s my problem with that criticism: The only major example of “judicial activism” on her part does not come from a ruling, but rather a ubiquitous YouTube video of unscripted remarks she made off the cuff. I have not seen her repeat those remarks and they do not seem to be born out by her rulings. I’m willing to take her at face value when she differentiates law and policy and can understand if that wasn’t her most articulate moment in life. We all make mistakes.

I wanted more examples. I wanted to understand what issues she felt she could exercise judicial control over. I wanted cases I could point to and say, “Here! This is yet another example of her legislating from the bench!” Such examples while they exist, are both relatively few and relatively minor. My inability to find such examples raised questions in my mind.

The search for those examples took me down a strange and twisted road.

A Promising Road

In a July 2007 campaign speech, Obama said, “We need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old, and that’s the criteria by which I’ll be selecting my judges.”

Despite such a terrifying statements, Sotomayor is actually pretty well qualified. Although her test scores may not have been good enough to get her into either Yale or Princeton, she was admitted under an affirmative action program and did graduate with honors. As she herself put it, “If we had gone through the traditional numbers route of [entering Princeton and Yale Law], it would have been highly questionable if I would have been accepted … And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of Affirmative Action to try to balance out those effects.”

After graduation, she worked as an Assistant District Attorney before entering private practice and eventually being nominated to become a District Court Judge and before being promoted to the Circuit Court. With 12 years practicing law and 17 years as a judge, she is just as seasoned as, if not more seasoned than, any other Justice currently serving at the time of their nomination. With regard to her record, in the 11 years she’s served as a Court of Appeals Judge, she’s heard more than 3,000 cases, but only authored (or co-authored, as the case may be) about 380 opinions – fewer than the average judge.

Of the decisions she’s made which she wrote an opinion on, only 3 (less than 1%) have been overturned by the Supreme Court. She reverses lower court decisions fairly infrequently. She has made decisions that have been both cheered and reviled by conservatives and liberals alike. Her decisions are not bound to one ideology or another, but instead bounce back and forth in a fairly unpredictable way. Quite contrary to the Republican line of attack, her rulings admirably tend to follow a simple adherence to either the law as it is written or to precedent with little in the way of personal thought on the behalf of Ms. Sotomayor.

The major criticism of her written opinions seems to center around two points: The way her opinions are written – they tend to be sloppily worded and clumsily tied together – and that she doesn’t seem to write them very often. To those I would add two of my own: Her opinions take a “shotgun approach” to an issue – that is, commenting on every single little part of a case without spending any time at the heart of the matter – and that she doesn’t actually write most of her opinions herself anyway.

A Bizarre Conclusion

Taken altogether at first glance, Ms. Sotomayor actually seems like a really good candidate, but as I researched this piece, a nagging thought kept popping into my head. Everything she has done pursuant to her professional life has been, well, a little …off.

• She made it into good schools, not as result of her merits, but because of Affirmative Action.
• She was recruited by the District Attorney’s office after receiving a recommendation by a professor of hers (who went on to found the PRLDEF) and had an unremarkable time there.
• When she left, she was recruited by a small civil law firm despite having no civil litigation experience.
• When she was nominated to the District Court, her only real accomplishments were a series of racially charged lawsuits filed by the PRLDEF.
• She was promoted to the Circuit Court based almost entirely on the fact that she was a Puerto Rican.
• Her judgments are not congruent with any one judicial philosophy and tend to be based on either a superficial reading of the law or precedent.
• Her opinions, when she bothers to write them, are sloppy and indirect.
• Her answers to the judicial committee are short and cagey, as if she’s trying to avoid being found out about something.

It didn’t add up. A brilliant woman does not need things handed to her. A brilliant woman would have no problem with school. A brilliant woman would know better than to wear racism on her sleeve. A brilliant woman would attack the heart of an issue in scathing opinion that would be applauded by her friends and feared by her enemies. A brilliant woman would be consistent and predictable in her rulings.

It didn’t really click with me until I sat down and watched a rerun of one of her previous sessions before congress. I didn’t catch the first part, but when I flipped on the television, there she was, talking about how she wrote her legal opinions. I wish I had the presence of mind at the time to either record it or write down the date and committee she was sitting before so I could get a transcript – but unfortunately I let the moment slip by. You’ll have to settle for a paraphrasing and trust me when I tell you she said this.

Anyway, she said that when she began work on her opinions, she would gather up her clerks and have a meeting with them. They would go over her ruling and the briefs that had been submitted to her, and a draft of the other judge’s opinion, if it was available yet, and she would tell her clerks what she wanted included in her opinion. Her clerks would then go, assemble a first draft, and return to her. Upon reading it, she would then make notes about it and send it back. This process continued until it was ready to be circulated to the other judges and that it would take 8 or 9 edits before she was happy with it.

As I was listening to this, I couldn’t help but think to myself, “A brilliant woman wouldn’t let other people write her opinions for her,” and then it struck me: Sonia Sotomayor is not a brilliant woman. She’s not a liberal. She’s not an activist. She’s just … intellectually lazy?

It was an uncomfortable thought at first. I don’t like to label people, especially our leaders, as being less than smart. I don’t like the idea of underestimating people. I don’t like the thought of ignoring ideas from people because of who they are from. I try incredibly hard to take people at face value without prejudging them or letting unrelated matters infringe on the issue at hand.

But the more I think about it, the more it makes sense to me. It explains things. It explains how she can make oblivious statements and not realize just how racist she really is. It explains her tireless crusade against standardized testing. It explains her support for Affirmative Action. It explains how she’s been able to go along with the current dragging her to the national stage without developing her own philosophy or ideas. She just doesn’t have it in her to do anything else.

I know people like this. Sheeple. They aren’t stupid, they just don’t think for themselves. They tend to form believe the things they do not because they thought about it and came to a conclusion, but because someone feed them a load. If all your life people tell you, “You’re smart for a Latino, and we need a Latino around the office,” what do you come away thinking? If you surround yourself with pro-latin activists, of course you’re going to think Affirmative Action is a great idea. If you advise a group that spent thirty years criticizing standardized testing, there’s only one way you can rule on Ricci v. DeStefano.

I’m not saying she’s stupid. Far from it, Affirmative Action or not, no one graduates from Yale and Princeton, enjoys a successful career in the court room, gets appointed to a federal judgeship, and then picked to be a Supreme Court nominee without having a great deal of hard work, dedication, common sense, and a terrific capacity to apply one’s self. I just don’t think she’s the sort of person who is capable of thinking for herself on a higher, more minute, philosophical level.

To Confirm Or Not To Confirm

As strange as it sounds, I don’t have a problem with an intellectually lazy judge. Judges have no need to be creative, independent thinkers. They don’t need to be clever, persuasive communicators. They don’t need to be the shining stars of one philosophy or another. They need to read the law, apply it to the case before them, and pick a side.

I want judges that just read the law and go along with it. I want judges that take things at face value. I want judges that don’t have some convoluted morally righteous philosophy they hide behind while shoving the law down our throats. She’s up to become Supreme Court Justice, and as bizarre as it sounds, creativity and independent thought are neither required nor desired in such a role. I don’t think I’ve ever said this before, but frankly, I think it’s a terrific quality for her to have.

It’s taken me a while to get over that contradiction. It’s not an easy thing to swallow, but as a judge … I kinda like her. And it’s more than a little weird for me to say that.

There is, however, the problem of race. It is, in my view, an irreparable problem. There aren’t many things I truly cannot and will not tolerate in a leader (and make no mistake, the Supreme Court Justices are among our highest leaders) but overt racial prejudice is one of those things. Racism, in my view, is an unforgivable sin. It represents an ignorant hatred, an irrational hubris, and an unwillingness to listen. It’s evil. Pure, unvarnished evil.

I don’t think she’s going to be one of the great minds of our time, but I think she might be a decent Supreme Court Justice. She’s going to pass the nomination process. There is little the Republicans can do to stop her, even if they had the political will (and they don’t) to do so. The Democratic vote in the Senate is filibuster-proof. Should the nomination split along party lines, she would be inevitably confirmed. At this point, there may be as few as 20 votes against her.

She’ll be confirmed. She’ll be an okay Justice. But I cannot in good conscience support her.

It’s a matter of principle.