June 17th, 2009 17:25 EST
Sonia Sotomayor??? At this point, there is no way of knowing
For President Dwight D. Eisenhower, it was Earl Warren. In Richard M. Nixon`s case, it was Harry Blackmun and Lewis Powell. And for George H.W. Bush, it was David Souter. In those instances, justices appointed the Supreme Court voted contrary to the way those appointing them had expected.
Could Judge Sonia Sotomayor join that list?
At this point, there is no way of knowing. I having second thoughts about this nomination when I realized that the same president who appointed Clarence Thomas to the Suprme Court also appointed Sotomayor to the federal bench. Bill Clinton elevated her from a federal district judge to the Second Circuit Court of Appeals but that does not change the fact that that the elder Bush selected her first.
Most civil rights leaders have enthusiastically endorsed Sotomayor, largely because President Obama says she will make an excellent Supreme Court justice. But that`s not good enough. We do ourselves a disservice by accepting someone - especially an appoinment as critical as this one - simply because the first African-American president picked her or that, if confirmed, she will become the first Latina to serve on the Surpreme Court.
Of course her life story is an inspiring one. Her parents moved from Puerto Rico during World War II. Sotomayor`s father died when she was 9 years old and her mother, a nurse, reared Sotomayor and her brother in a South Bronx housing project. She graduated summa cum laude from Princeton University and Yale Law School, where she was editor of the Yale Law Journal.
The emphasis on Sotomayor`s background is an eerie reminder of how Clarence Thomas` nomination to the Suprme Court was orchestrated. There were endless stories about his humble upbringing in Pinpoint, Ga. His father left when Thomas was 2 years old and the family home was destroyed by fire. Those handling his nominantion conveniently neglected to point out that at the age of 7, Thomas moved in with his grandfather, a businessman, in Savannah. That assured him a life more comfortable than that of most Blacks in the city. After completing Catholic schools, he enrolled in Holy Cross as an undergraduate and Yale Law School. Thomas background didn`t make him have empathy for the plight of African-Americans.
A. Leon Higginbotham Jr., former chief judge of the U.S. Court of Appeals for the Third Circuit, said, "I have often pondered how is it that Justice Thomas, an Afican-American, could be so insensitive to the plight of the powerless. Why is he no different, or probably worse, than many of the most conservative Supreme Court justices of the century? I can only think of one Supreme Court justice duirng the century who was worse than Justice Clarence Thomas: James McReynolds, a white supremacist who referred to blacks as `n*ggers.`"
Though there is no indication that Sotomayor is another Clarence Thomas, there is no evidence that she will become another Thurgood Marshall.
The case of Pappas v. Giuliana involved a New York City policeman who was fired for distributing racist material. An appeals court panel ruled that the city could fire the cop for his behavior without violating his First Amendment right to free speech. However, Sotomayor dissented, siding with the fired policeman.
The most alarming aspect of Sotomayor`s record was discussed in a May 31 Los Angeles Times articled titled, "Two Sides to Sonia Sotomayor." It noted a Thomas Goldstein, a Washington lawyer and expert on the Supreme Court, had reviewed 50 cases involving race that emanated from Sotomayor`s appeals court. Of the 50 cases, a three-judge panel rejected 45 discrimination claims. Sotomayor failed to dissent in any of the 45 cases that went against plainriffs charging racial discrimination.
An examimination of the former prosecutor`s record by the McClatchy News Service shows that she is definitely pro-government. The news service reported, "Of 90 criminal-law cases considered by an appellate panel on which Sotomayor had served since January 2002, she`s sided with the government 65 times and prisoners and defendants 25 times."
Prosecutors are required by law to turn over any evidence to defense lawyers that might exonerate their client. But in at least one instance, Sotomayor demonstrated that even when that requirement has been violated, she was unwilling to favor the prosecution.
"In 1995, for instance, a man convicted of bribery and consipiracy named W;pdel Jan Lech sought to sanction federal prosecutors who`d kep secret information that would`ve helped the defense," the McClatchy story noted. "Sotomayor agreed that the prosecutors` actions were `disturbing` and `astonishing,` and she said she was `placing them on notice` that a recurrence could bring more serious consequences. Nonetheless, she sustained the prosecution`s case."
It would be good if we could have a clearer view of what type of Supreme Court justice during her Senate confirmation hearings. However, if the past is any indication, she`s likely to refuse to reveal her views on many substantive issues because, she will argue, they are issues she might be required to vote on in the future. And she`ll prvovide the usual pablum about ruling solely on the facts of the cases before her.
As I said at the outset, we don`t know what kind of Supreme Court justice Sotomayor will make. We do know that presidents have been wrong before when they made Supreme Court appointments. And it would be a mistake to support Sotomayor because of her humble background or because President Obama vouches for her.
George E. Curry, former editor-in-chief of Emerge magazine and the NNPA News Service, is a keynote speaker, moderator, and media coach. He can be reached through his Web site, www.georgecurry.com.