Am I alone in detecting irony in the Left's embrace of Judge Sotomayor’s ethnic background as an enhanced qualifier for her nomination? Where were the accolades for Clarence Thomas in 1991, whose personal backstory was every bit as compelling as Judge Sotomayor's? Where were the glowing media reviews for any number of other candidates of diverse backgrounds nominated by former President Bush for Cabinet posts or appellate courts? Instead, some of them were treated to racially offensive cartoons or editorials in major liberal newspapers.[1]

            Spare me the hypocrisy. Judge Sotomayor’s ethnicity and upbringing are, of course, as much a part of her as is her Yale Law degree, and she is right to be proud of all three. But her ethnicity should not enter into any rational discussion of her qualifications to ascend to the highest court in our country.

            Did her belief that her ethnicity makes her "a better judge" negatively affect her judging? In the recent 2^nd Circuit decision of Ricci v. DeStefano,[2] she joined a per curiam decision (against the urging of her mentor and fellow Puerto Rican-American, Judge Jose Cabranes, who dissented eloquently and called for a full opinion) approving the summary dismissal of firefighter promotional test scores, not because the test had any racial bias, but simply because no African-American firefighters scored highly enough on it to pass. 

            Think about that-- as Judge Cabranes noted in his dissent, the City of New Haven tossed the test scores for no reason other than the race of those who passed. That Judge Sotomayor not only saw nothing wrong with that, but joined a bare majority of the panel in not even deigning to grace their decision with a reasoned opinion, speaks volumes as to her thinking about race and her role as a judge. What it says should give any conservative observer pause.

            Another disturbing pattern in Judge Sotomayor’s judicial background, and one that has gotten little attention, is her tendency to embrace the fuzzy concept of “legal realism[3].” First espoused by another 2^nd Circuit judge, Jerome Frank, in the 1930’s, it is anathema to any conservative interested in the permanence and immutability of the United States Constitution. The per curiam ruling in Ricci is redolent with its malodor. In a 1996 lecture, Judge Sotomayor, then a trial judge, embraced the notion that there are no immutable standards in the law:

 The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.[4]

More than her unfortunate comments about being a “wise, Latina woman,” it is this ad hoc, standardless approach to the law that any red-blooded conservative lawyer should choke on. Although I have learned not to expect any intellectual depth from the Republicans currently warming seats in the Senate, hope springs eternal—perhaps of the Republican members of the Judiciary Committee will ask her about her thoughts on this subject. 

The law is many things, but if it truly ever becomes “experimental,” and thus free to mean whatever judges, “with the able assistance of lawyers,” say it means, we will cease to be a Constitutionally controlled Republic, and enter the nightmare world Franz Kafka described in his short essay, “Before the Law[5].” That is a world I want no part of.