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With regret, I must oppose the confirmation of Sonia Sotomayor as an Associate Justice of the United States Supreme Court.

Last week, I watched an argument on "Hardball" between Pat Buchanan and Joan Walsh of Salon Magazine.  Walsh kept insisting that she was "eminently qualified".  Actually, she is no more qualified than tens of thousands of lawyers across the land.  She has the same basic educational qualifications (Princeton/Yale) as Justice Samuel Alito.

The last true Democratic appointment to the high court was either Thurgood Marshall in 1967 or Abe Fortas in 1965.  Marshall was a bit of an outlier because, though he was Solicitor General at the time of his appointment, he had previously served on the United States Court of Appeals for the Second Circuit.  Please follow below the fold for what I mean by "true Democratic appointment" and the reason I oppose Sotomayor.

During the 20th Century, at least until the past 28 years of Republican rule, Democrats and Republicans had very different views of the Supreme Court and the kind of person suitable for appointment.  

Republicans tended to view the Courts as a sort of bureaucracy.  Republican Presidents tended to elevate judges from lower courts, emphasizing experience on the lower courts as somehow qualifying someone by experience to sit on the high Court.

Democrats recognized that the Supreme Court was different.  Democrats recognized that the Supreme Court made policy, as well as ruling in individual cases.  Thus, Democratic Presidents were more likely to appoint persons who had distinguished themselves in some other way before coming to the Supreme Court.  Democrats wanted to appoint people who had distinguished themselves in some way, as well as having the ability to see the big picture of the effect a decision would have on the larger body politic.

FDR, for example, appointed Hugo Black, a United States Senator who had practiced law for many years in his native Alabama.  (Yes, he had been a member of the KKK when young, but it was of necessity at that time and place.  It did not affect his rulings.)  There was William O. Douglas, one of our weirdest justices, who had been a failure as a lawyer, had taught high school for a time, and had been a good member of the Securities and Exchange Commission, when that body was just starting its work.  There was Felix Frankfurter, who had been an early Zionist, an intellectual born in Vienna, and a long-time Harvard Law School professor, who took time off to serve in various governmental jobs.  Frankfurther wrote one of the briefs attempting to get a new trial for Sacco and Venzetti.

There have been exceptions, of course.  Eisenhower appointed Earl Warren as Chief Justice.  That was because of a political deal at the 1952 Republican Convention.  Warren, then Governor of California, threw his support behind Eisenhower in return for the appointment to the first open seat on the Court.  It turned out that the first seat happened to be that of Chief Justice.  Later, Eisenhower wanted to appoint a Democrat to the Court.  He appointed William Brennan, who was then a Justice on the New Jersey Supreme Court.

President Clinton got to fill two open seats on the Court.  Clinton, who never actually practiced law, didn't care much about the Court.  He appointed Ruth Bader Ginsberg and Stephen Bryer, both of whom were recommended to him by Republican Senator Orrin Hatch.  Hatch had assured Clinton that neither would generate much opposition from Republicans.  Both of them were elevated from a Court of Appeals judgeship.  While they have both been serviceable, neither has been distinguished.  Bryer has his head twisted by his prior service on the U. S. Sentencing Commission.  He has continually tried to rescue that body from the ash heap of history on which it belongs.

When David Souter announced his retirement from the Court, it was announced that President Obama was going to look far and wide.  It was said that he was not necessarily going to appoint another judge who would be elevated to the Supreme Court.  The Supreme Court is stale because of the inbreeding of appointing lower court judges.  There has not been a breath of fresh air there since the 1960's.

Sonia Sotomayor has been running for this job since she went off to law school.  She grew up in a poor section of the Bronx.  Her father died when she was 9.  She got a full scholarship to Princeton and graduated second in her class.  She then went off to Yale Law School, for reasons unknown.  As I have written before, many in the legal profession do not like Yale Law School.  It does not teach law.  It teaches public policy.  The current method of teaching lawyers, which is used in every law school in the nation, was invented by Harvard Law.  Yale University itself was founded as a conservative alternative to Harvard back in the 18th Century.  It still labors under that burden to this day.  We already have two Yale Law graduates on the Supreme Court, Clarence Thomas and Samuel Alito.  We certainly do not need another.

However, after law school, Sotomayor went to work in the Manhattan District Attorney's Office, not the kind of job one usually associates with someone who did well enough academically to be Law Review.  That remains a puzzle.  A more typical route would have been the United states Attorney's Office, which in those days was in the hands of Democrats.  One goes to work in a District Attorney's Office for one reason, to gain trial experience.  Sotomayor claims that she prosecuted all sorts of horribles, including murderers.  Perhaps Manhattan operates differently, but it should have taken her a year or two to move up from misdemeanors.  Murder cases are typically handled by very senior prosecutors.  Sotomayor left he DA's office after five years.

Next, she went to work for a law firm and finally began to practice law.  (Deputy District Attorneys do not practice law.  They try cases, which is only a fraction of what one does in the actual practice of law.  Deputy District Attorneys rarely handle things like motions, research, investigations, and other matters that complicate the actual practice of law.)  In any event, she says that as a private practitioner, she was involved in "intellectual property".  That sounds very impressive.  However, the descriptions of her position showing her chasing after counterfeit goods.  While that is important, to the economy and to the clients, it is not particularly prestigious.

After eight years of law practice, she became a U. S. District Judge.  She was appointed by President George H. W. Bush on the recommendation of her Sentaors, Alfonse ("Pothole") D'Amato and Daniel Moynihan.  After five or so years, President Clinton appointed her to the 2nd Circuit Court of Appeals.  Thus, she has practiced law for all of eight years and has spent the rest of her time in protected jobs, either as a civil servant in the District Attorney's Office or a life-time tenure as a Federal Judge.

I do not dispute that Sotomayor has worked hard.  I do not dispute that she has made all the right moves, as it were.  She has obviously been running for this position since she went off to Yale in 1976.  She has, of course, been running as a Republican.  Indeed, we now have to listen to Democrats, and purported liberals like Joan Walsh, make Republican arguments for appointing her to the Supreme Court.

Hugo Black, Felix Frankfurter, Earl Warren, William Brennan, and Thurgood Marshall had all distinguished themselves in some large way prior to being appointed to the Supreme Court.  Sotomayor has not done anything that thousands of others have done who came from similar circumstances.  There is nothing distinguished about her.  As one Democrat commented, she is a "competent technocrat".

We do not need another judge elevated from the Court of Appeals.  The current Supreme Court is embarrassing by its blandness.  Each and every current justice has been elevated from a Federal appeals Court.  The only thing I see Sotomayor having accomplished is following a traditional Republican path to the nomination.  I believe we can do better.

Originally posted to ScarySteve on Sun May 31, 2009 at 05:03 PM PDT.

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