A Choice To Regret

By INVESTOR'S BUSINESS DAILY

Justice: The Senate Judiciary Committee has made an error that will likely be repeated by the full Senate. It has approved Judge Sonia Sotomayor's nomination for the Supreme Court.

The president has the privilege of nominating anyone he pleases to the Supreme Court. Ideally, it should be someone who is qualified, so that the Senate, through its advice and consent, can without reservation confirm the candidate. In the case of Sotomayor, the candidate is not qualified.

Even Sen. Orrin Hatch, the go-along-to-get-along Republican from Utah, is opposed to the confirmation of Sotomayor. Hatch noted that the federal appeals court judge has made "troubling statements" outside the courtroom "that appear to conflict with the impartiality that I believe is essential, that most Americans expect, and that the oath of judicial office requires."

Hatch also has difficulty, as should we all, with Sotomayor discussing just a few months ago "the relevance of foreign law to the interpretation and application of American law."

"Judge Sotomayor was quite candid in this speech, saying that foreign law will be 'very important' in thinking about legal issues and that judges may look to what 'anyone has said to see if it has persuasive value' in deciding cases," Hatch said.

The Utah senator also cited Sotomayor's reversal record at the Supreme Court — nine of the 10 Sotomayor cases it heard — and is concerned about her giving "short shrift to the fundamental right to private property" as well as her "activist approach to judging."

This is not the position of a hard-line conservative, but a senator who has largely been reluctant to vote against any president's judicial nominee. Hatch freely admits he takes "quite a generous approach to the confirmation process, believing that the Senate owes some deference to the president's qualified nominees."

That he would so strongly oppose Sotomayor's ascendancy to the Supreme Court is meaningful.

At 55, Sotomayor is relatively young. If approved by the full Senate, she will be a mistake the country will have to live with for a generation, one more justice who believes it's the job of the courts to make law, a position in direct conflict with the Constitution.

Not wanting to appear the radical she is, Sotomayor tried during her confirmation hearing to play the role of the jurist who will follow the law. But she cannot expunge her statement made in 2005 in which she said "the court of appeals is where policy is made."

Nor can she pull back her stated "hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life." Or that she has been a member of the National Council of La Raza, viewed by some as a radical racist group.

Sotomayor the judge is a creature of the left-wing agenda that seeks to effect social and economic change through rulings in the legal system.

It's not hard to imagine that on the most important court in the world, unlike the appellate bench where precedent holds more sway, she will regularly arrive at freewheeling, non-law-based decisions that advances causes that offend our unique legacy of liberty and justice. None of us, no matter what our politics, will be well-served by this.

All that said, we have to accept the inevitable. Judge Sotomayor was approved 13-6 by the Judiciary Committee — Hatch being one of six Republicans to vote against her while GOP Sen. Lindsey Graham voted in favor — and she is likely to be confirmed by the full Senate. She will take David Souter's seat on the bench.

And though she won't single-handedly pull down the republic, she will have a big hand in undermining its foundation.