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Jewish World Review
June 5, 2009
13 Sivan 5769
No Slouching Toward Confirmation
Nothing so polarizes the nation as a nomination to the Supreme Court. Advise and consent is often more like divide and confront, rarely eliciting our best debates. "Borking" a candidate has entered the lexicon of tactics for savaging a nominee by exaggerating positions with simplistic slurs, uttered with an attitude and tone of self-righteousness.
It's worth repeating in full Ted Kennedy's famous attack on Robert Bork when he was nominated for the Supreme Court, because it so maliciously misleads by naming those the senator said would be abused by the nominee if his colleagues dared to confirm him:
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government and the doors of the federal courts would be shut on the fingers of millions of citizens."
Quite a hysterical mouthful. Kennedy, along with his radical feminist and liberal helpers, successfully poisoned the minds of the judgers of the judge, employing emotion rather than rational understanding of the philosophy on which Judge Bork applied the law. After Bork retired from the spotlight, he retaliated with an exaggeration of his own. He called his book "Slouching Towards Gomorrah," suggesting that the nation was becoming the Biblical city burnt to the ground as punishment for the sins of the people. But we no more risk being exiled to Gomorrah than Robert Bork would bring back segregation.
If the title of his book stretched the degree of our decadence, it also developed a cogent argument that sheds light on the reasons for Sonia Sotomayor's nomination. Unlike Bork, who was nominated because of his brilliance as a lawyer, Sotomayor was chosen for what has come to be called "emotional intelligence," or empathy, an important qualification for a psychotherapist but dubious qualification for a judge.
While the president went out of his way last week to say that he believed his nominee would admit to a poor choice of words when she said that a Latina judge could reach a "better" conclusion than a white male judge who didn't share either her experience or instinct, her fans rallied to her: This wasn't racism, but common political rhetoric of activist groups. The identity culture spawned by the Democrats diminishes the white man while it continues to blame him for patriarchal abuse of power, whether inside the White House before Obama or on Capitol Hill and at the Supreme Court.
Culture in this country, in the Bork scenario, influences politics and liberalism as it is practiced demanding "equality of outcomes." This certainly was the point behind the decision in the firefighter suit in New Haven, Conn., when Judge Sotomayor voted for dispensing with all promotions because no black qualified for promotion.
Hispanics and the rest of us have every reason to applaud the accomplishments of Sotomayor her biography reflects the American dream in which we all take pride. No one should denigrate it as important to establish who she is, just as many of us appreciated the accomplishments of Clarence Thomas.
Biography is important. It testifies to ambition, hard work, discipline against the odds. But Sen. James M. Inhofe of Oklahoma, a Republican, is right to question Sotomayor's "ability to rule fairly without undue influence from her own personal race, gender or political preferences." How she answers questions like this will be crucial to determining whether she's a good choice for the high court.
Bork, as a pessimist, believes that America is in decline. The "morning in America" celebrated by Ronald Reagan has become late afternoon in America. Bork's personal experience makes that understandable. Such pessimists see the nomination of Sotomayor as a step toward decline. Her nomination, however, can be an opportunity to examine the hazards of identity politics. The task before the U.S. Senate is to get to the content of Sotomayor's character and her judicial qualifications what Alexander Hamilton called "the requisite integrity with the requisite knowledge."
That will require toughness, not nastiness, from senators on both sides of the aisle. Clarence Thomas, who should know, said it well: "A good argument diluted to avoid criticism is not nearly as good as the undiluted argument, because we best arrive at truth through a process of honest and vigorous debate." So the senators should take their lunch. They have a long day's work ahead.
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