Sotomayor nomination signals racial agenda - East Valley Tribune: Opinion

Sotomayor nomination signals racial agenda

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Posted: Friday, July 17, 2009 12:20 pm | Updated: 3:00 am, Sat Oct 8, 2011.

David Molina: Like the current Supreme Court nominee, Judge Sonia Sotomayor, I am a Nuyorican (born in New York to a Puerto Rican family). I grew up in a public housing project in the Manhattan section called "El Barrio," or Spanish Harlem. As a Nuyorican, I am proud that one from our community has been nominated to the highest court in the land. Nevertheless, as an American, I cannot support her confirmation to the Supreme Court of the United States.

Like the current Supreme Court nominee, Judge Sonia Sotomayor, I am a Nuyorican (born in New York to a Puerto Rican family). I grew up in a public housing project in the Manhattan section called "El Barrio," or Spanish Harlem. As a Nuyorican, I am proud that one from our community has been nominated to the highest court in the land. Nevertheless, as an American, I cannot support her confirmation to the Supreme Court of the United States.

I will not go over press reports about her lack of judicial temperament nor her infamous comment that a Latina woman can reach better decisions than a white male. Her past legal work and judicial opinions, however, are an evidentiary proxy for her future juridical work on the Supreme Court, should the Senate confirm her nomination.

Her work at the Puerto Rican Legal Defense and Education Fund (PRLDEF, now called the LatinoJustice PRLDEF), an activist group that uses the law to compel racial quotas at the workplace, was scrutinized last week by the Senate Judiciary Committee. During Sotomayor's service as a board member of the fund in the 1980s, the organization filed lawsuits over employment examinations alleging the tests produced disparate results because the tests were biased against minorities.

The effect of this Title VII litigation brought racial quotas to the workplace, where the basis of promotions is not the content of one's character and skill, but the color of one's skin. This is racial politics at its worst. For the fund, any employment-related test that gets the numbers wrong (i.e., a high failure rate by minority employees) is grounds for a lawsuit, regardless of the validity, or racial neutrality, of the test itself.

Although defenders of Sotomayor's nomination argue that there is no evidence showing that she had anything to do with the PRLDEF's litigation, there is an old Spanish adage that Sotomayor must know that says "dime con quién andas y te diré quién eres" (tell me with whom you walk and I will tell you who you are; or a man is known by the company he keeps). As there is no private or public record of her disagreeing with the PRLDEF's work, it stands to reason that she believes in establishing racial quotas at the workplace regardless of its impact at the workplace, such as reverse discrimination.

In light of the Supreme Court's decision in Ricci v. DeStafano, Sotomayor's endorsement of racial quotas, or acceptance of reverse discrimination, as a federal appeals judge was not only exposed for all to see, it was soundly rejected. Although Ricci was a 5-4 majority decision, the court was unanimous in rejecting Sotomayor's holding that government could engage in race discrimination solely on the basis of showing that test results produced a statistical racial disparity. As Justice Ruth Bader Ginsburg's opinion for the dissent clearly stated, an employer "cannot cast aside a selection method (or test) based on a statistical disparity alone."

In addition, with the Ricci opinion, the Supreme Court has now reversed four out of six majority opinions written by Sotomayor for the Second Circuit Court of Appeals. Not a great record for a Supreme Court nominee. Perhaps that is why Obama and others are focused on her personal story rather than on her legal acumen.

In Maloney v. Rice (a Second Amendment case), Sotomayor, along with two other circuit judges, apparently decided that because the bar against infringing on the individual's Second Amendment right to keep and bear arms only applies to the federal government, states may legislatively impose limitations on that right. Does anyone believe that if given the opportunity to be a Supreme Court justice, she would open the door for states to ban the individual's right to keep and bear arms? Applying President Barack Obama's standard of review for judicial nominees, I believe she will move in that direction.

During the confirmation hearings last week, Sotomayor tried to dispel concerns by declaring that her 17-year career on the bench does not show any "liberal instincts" in cases she officiated. Does anyone believe that Obama would have nominated Sotomayor if her judicial instincts were "conservative," say like those of Judge Janice Rogers Brown (an African-American who happened to be a California Supreme Court justice when she was nominated for a federal judgeship) or Miguel Estrada (a Hispanic or Latino-American attorney), two judicial nominees that Obama tried to derail?

Moreover, Sotomayor stated during the hearings that she is restrained by Supreme Court precedent. But if confirmed to the Supreme Court, what is to restrain her from overturning precedent? Or for that matter, to judicially expand the power of government to impose racial quotas, or to allow states to limit or outright ban the right to keep and bear arms? Sotomayor's opinions in the Ricci and Maloney cases may foreshadow an over-arching and overreaching liberal judicial philosophy that she will apply if confirmed to the Supreme Court.

It has been said that elections have consequences. Fair enough. Obama is entitled to select and nominate his choice for the Supreme Court. Of course, a president can select his nominee to reward and/or placate a politically important constituency. What president hasn't? So, it seems that the nomination of Sotomayor was to placate a growing and politically important racial constituency: Hispanics or Latinos.

Nevertheless, the Senate must fulfill its constitutional obligation to give its advice and consent to the president over his nominee by giving Sotomayor a fair hearing.

Given her legal work and her judicial opinions, she seemingly challenges one of our nation's core tenants: equal justice under the law. Sotomayor's ascension to the Supreme Court will lead to disparate jurisprudence on matters of race and equality in the workplace, as well as on the individual's right to bear arms.

Furthermore, given her politics and legal views on race and on the Second Amendment, her nomination by Obama renders his much-exalted post-racial politics, as well as his assertions of support for the Second Amendment, hollow. Moreover, Sotomayor's nomination is a strong indication of a return to a race-based agenda and an attempt to limit or effectively render meaningless the Second Amendment. Thus, her disqualification from the court is an imperative.

Finally, as a Nuyorican and as an American, I do not want empathy or sympathy from a Supreme Court justice. What I want, what I demand, from a justice of the Supreme Court is even-handed enforcement of the law. And that is what Sotomayor seems to deny us all.

I urge my own senators, John McCain and Jon Kyl, and other like-minded senators that believe in equal justice for all, to oppose Judge Sotomayor's confirmation to the Supreme Court.

David Molina of Mesa is president of the Valley Business Owners (and Concerned Citizens) Inc.

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