Back when I was on the receiving end of racial discrimination,
it was to me not simply a personal misfortune, or even the misfortune of a
race, it was a moral outrage. But not everyone who went through such an
experience sees it that way.
When it comes to subjecting other people to the same treatment
in a later era, some have no real problem with that. They see it as
One of the many problems of the pay-back approach is that many
of the people who most deserve retribution are no longer alive. You can take
symbolic revenge on people who look like them but this removes the whole
moral element. If it is all right to discriminate today against individuals
who have done you no harm, then why was it wrong to discriminate against you
in the past?
These are not just abstract questions. These are serious, real
world questions, especially when considering someone to be given a lifetime
appointment to the Supreme Court of the United States.
Some judicial nominees have had racial bias attributed to them,
despite their years of unwavering support of civil rights for all Judge
Robert Bork and Judge Charles Pickering being striking examples. But the
current Supreme Court nominee is the first in decades to explicitly
introduce racial differences in their own words, along with the claim that
their own racial or ethnic background makes them better qualified.
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Attempts to claim that Judge Sonia Sotomayor's words were
isolated remarks a slip of the tongue "taken out of context" have now
been discredited by further information showing that she has repeatedly
expressed the same ideas, in virtually the same words, at other times and in
Moreover, her deeds including years of participation in group
identity politics are perfectly consistent with her words. So too was her
vote on the 2nd Circuit Court of Appeals to summarily dismiss the appeal of
white firefighters who did not get the promotions they had earned by passing
a required test, because not enough minority firefighters passed to provide
The Supreme Court of the United States found that appeal worth
hearing, even if Judge Sotomayor did not.
The warm and genial image of Sonia Sotomayor presented on
television, during President Obama's introduction and afterwards, is in
sharp contrast with what attorneys who have appeared before her in court
A poll of such attorneys showed them rating her worse than other
judges in her treatment of those who appeared before her. A tape of Judge
Sotomayor's abusive behavior in court backed up the attorneys' picture. It
is also consistent with someone in pay-back mode.
A confirmation decision on a Supreme Court nominee is not like
deciding whether someone is innocent or guilty of a crime. It is right in
criminal cases that the burden of proof is on those making an accusation,
and that the accusation be proved "beyond a reasonable doubt."
Judge Sotomayor is not in jeopardy of either criminal or civil
penalties. So there is no reason why either the criminal standard or proof
"beyond a reasonable doubt" or the civil standard of "the preponderance of
evidence" is required for determining whether she is the right person to be
given a lifetime appointment to the highest court of the land.
It is hundreds of millions of Americans current and future
whose fundamental rights are at stake whenever any nominee is being
considered for the Supreme Court of the United States. It is the American
people as a whole who are entitled to the benefit of the doubt.
One of those fundamental rights was taken away just four years
ago, when a 5 to 4 decision by the Supreme Court gave local politicians the
right to seize your home or business and turn the property over to some
other private party that they favor. Just one vote on the Supreme Court can
make a huge difference.
We have been told endlessly about Sonia Sotomayor's biography
and her symbolism as a Hispanic woman. Is that enough to risk millions of
other Americans' fundamental rights?