THOMAS: Biography and the law

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By Cal Thomas

COMMENTARY:

In introducing his choice to replace Justice David H. Souter on the Supreme Court, President Obama touted Judge Sonia Sotomayor's biography.

He noted her humble beginnings: She grew up in a housing project in the Bronx, was a child of Puerto Rican parents, had a father who died when she was 9 and a mother who worked six days a week as a nurse so young Sonia and her brother could go to Catholic school.

If these humble beginnings mattered, as they relate to Judge Sotomayor's view of the Constitution, Clarence Thomas should have sailed through his confirmation hearings instead of being subjected to "a high-tech lynching," as he famously put it. Justice Thomas also came from humble beginnings (as did President George W. Bush's Hispanic Attorney General Alberto Gonzales), but biography matters only if you're a liberal. If you evolve into a conservative, it is irrelevant, at least to the elites.

Mr. Obama says a main criterion for selecting someone for the court is that the person be empathetic to people and to the consequences of legal decisions.

In a 2002 speech at Berkeley, Calif., Judge Sotomayor said she though it was appropriate for judges to consider their "experiences as women and people of color" when they make decisions and added that such things should "affect our decisions."

That statue above the Supreme Court - the one of a woman wearing a blindfold and balancing scales in her hand - is meant to depict the law as blind to one's gender, race and personal circumstances. Mr. Obama wants that blindfold removed and the law tailored, like a suit, to fit the individual. This is the classic liberal view of the law, or as Judge Sotomayor has put it, the courts "are where policy is made."

None of this matters, because Democrats have the votes in the Senate to confirm her. Moderate and even some conservative Republicans will cower at the prospect of being labeled racist, sexist and anti-Hispanic. Plus, it is a one-for-one exchange, swapping the liberal Justice Souter for the liberal Judge Sotomayor, so not all Republicans will want to put up a fight. They should, if for no other reason than to train for the next nomination, not to mention standing on principle.

There are not many personal indiscretions that could torpedo this nomination. Though tax avoidance sank Tom Daschle's nomination to be health and human services secretary, tax problems didn't stop his successor, Kathleen Sebelius, or Treasury Secretary Timothy F. Geithner. We seem, too, to have gone beyond the avoidance of nanny taxes that derailed previous nominations for lesser positions. So what should the Republican strategy be?

The strategy should be played out on at least three fronts. The first front should be Judge Sotomayor's rulings, several of which have been reversed by the Supreme Court. These rulings are fair game.

Republicans should expose the judge's liberalism, as revealed in cases such as Ricci v. DeStefano, in which white male New Haven firefighters, denied promotion after an exam because no blacks qualified for advancement after taking the test, filed a discrimination suit when the city of New Haven threw out the exam results and decided not to issue any promotions. The firefighters' suit eventually was dismissed.

Judge Sotomayor, as part of a three-judge panel hearing the case, upheld that dismissal. Even liberal Washington Post columnist Richard Cohen and Judge Sotomayor's colleague Judge Jose A. Cabranes, a Clinton appointee, expressed shock and disappointment over her ruling.

The second front should be a recitation of what the Founders had in mind when they wrote the Constitution and the benefits that come from conforming people to that document. Too many of our schools teach too little history, or falsify it. A history lesson would be good for the country. If the Constitution is treated as liberals treat the Bible, it loses its meaning, purpose and power.

The third front should focus on the hypocrisy of the left, including President Obama. There is a gold mine of quotes from liberals, such as former Democratic National Committee Chairman Howard Dean, excoriating conservative judicial nominees. Republicans should use the quotes against those who opposed conservative candidates for the Supreme Court.

During his brief time in the Senate, Mr. Obama voted against John G. Roberts Jr. and Samuel A. Alito Jr. He acknowledged they were well-qualified for the bench but opposed their nominations because he thought they might be conservatives.

If Mr. Obama could vote that way as a senator, why shouldn't Republicans do unto him what he did unto a Republican president and vote against Judge Sotomayor for her liberalism? At a minimum, her statements and record should get a thorough going over.

Cal Thomas is a nationally syndicated columnist.