Tuesday, May 26, 2009
From Souter To Sotomayor
| I was wrong again. I thought that Harold Hongju Koh would ultimately be President Obama‘s poor choice to replace Justice Souter on the Supreme Court. Koh was named one of America's “45 Leading Public Sector Lawyers Under The Age of 45” by American Lawyer magazine and one of the “100 Most Influential Asian-Americans of the 1990s” by A magazine. He is also a leading expert on public and private international law, national security law, and human rights. He has argued before the United States Supreme Court and testified before congress more than twenty times. He has been awarded eleven honorary doctorates and three law school medals and has received more than thirty awards for his human rights work. He is recipient of the 2005 Louis B. Sohn Award from the American Bar Association International Law Section and the 2003 Wolfgang Friedmann Award from Columbia Law School for his lifetime achievements in International Law served as the Dean of Yale Law School and is currently President Obama's Legal Adviser to the United States Department of State. The most controversial aspect of Koh’s judicial opinions are those which defines of sovereignty as “a nation’s capacity to participate in international affairs,”. Many say that such blurs any legitimate national identity or rights. Given President Obama’s cited irregular criteria for what he wanted in a Supreme Court Justice and his lack of concern for sovereignty, I felt that Harry Koh, who was already made an advisor to the President, was a shoo in. It would have been historic in that such an appointment would have placed the first Oriental American to the bench. But I was wrong. President Obama, instead chose Sonia Sotomayor. It is also a decision that is historic. In addition to being only the fourth woman to be nominated to the court by a President, she is the first Hispanic and sixth Catholic. Given the fact that President Obama has upset Hispanic constituents by both his lack of Hispanic appointments in his cabinet and his promised delay in tackling immigration reform, the move to nominate Sotomayor is one that throws this disgruntled voting bloc a bone. Of course heritage, gender, religious faith and sexual orientation should not play a role in selecting a justice, but politics often has a way of infecting logic and although Sotomayor’s rise from working class roots in a Bronx housing project to Supreme Court Justice is an inspiring American story, it is irrelevant to her judicial abilities. None of this takes anything away from Sotomayor and as I stated in a previous post on this issue, she is probably the best choice that Republicans could expect out of President Obama. She has been on the federal bench since 1992, served as a prosecutor and although half of six of her rulings which were appealed to the Supreme Court, were overturned, each of those appeals were close calls and none seem to have been glaring opinions based on activist sentiments. Now, the confirmation process will be an interesting one. It is my hope that no single Republican will embarrass themselves with the kind of chicanery and outrageous behavior that Democrats like New York Senator Chuck Schumer did when justices Roberts and Alito went through their confirmation hearings. Sotomayor should only be denied confirmation if her record demonstrates one of judicial activism that seeks to write laws instead of interpreting laws or if she has demonstrated a clear lack of understanding of law. Despite recent, off-the cuff, remarks that Sotomayor made about her own gender and heritage bringing a needed perspective to the Supreme Court, I do not believe that Sonya Sotomayor’s record indicates either a record of activist judicial behavior or a lack of legal understanding. Then again, I was also wrong on who I thought the President would actually nominate to the court and of course the confirmation’s process of extensive investigation and debate has not played out yet. The facts that will be revealed during its course will either prove me right or wrong but barring any unknown improprieties or actual examples of judicial activism, I think Sonia Sotomayor will be confirmed and with reason. Americans must live with those decisions that are at the discretion of the President we decide to elect and this is one of those decisions. In the meantime, Republicans will be wise to act respectfully and rationally. The outrageous conduct f people like Chuck Schumer should not be replicated by us. And ultimately, I have a feeling that just as David Souter disappointed Republicans with his decisions, I have a feeling that with some of hers. |
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