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.

"I think ... sort of the bottom feels like it is falling out for many people... They sense there's a total lack of leadership in Washington, that the White House is silent, the treasury secretary has been battered, the Federal Reserve can't speak up. These automakers come up to Capitol Hill and fail. And the president-elect is silent in Chicago."

•  Don't stuff earmarks into legislation like you're stuffing cocktail shrimp into your pockets at the White House reception;
•  Don't play footsie in the men's room stall;
•  Don't send dirty emails to Senate pages;
•  Don't take money from dirty lobbyists;
•  Try to avoid getting indicted, much less convicted;
•  Spend more time listening to your constituents, and less time at Beltway cocktail parties;
•  Remember why you were elected, and who elected you.

-George W. Bush, September 20, 2008

As a new President plans his transition, I am pausing lately to give a little thought to the one on his way out. When George W. Bush took office in January, 2001, no one could have predicted the calamitous eight years that awaited him. His Presidency was transformed, and in a very real sense, sacrificed, on September 11, 2001. From the moment the planes hit the World Trade Center, the Pentagon, and the fields near Shanksville, Pennsylvania, he knew that whatever plans he might have had for his administration over the next four or eight years were gone. His mission had fundamentally changed.

In his joint session address to Congress nine days after the attack, President Bush made the Nation a promise. Its essence is highlighted above. In the last days of his Presidency, many people in the chattering classes have forgotten that speech, and that promise. But he never did. Though the years since have been fraught with setbacks, and he and his administration have made more mistakes than can be counted, President Bush has never broken faith with his country. He never tired; he never faltered; and he has not failed.

It is not by accident that this country has not suffered a single terrorist attack, within its borders or in its embassies outside of the war zones of Afghanistan or Iraq, since September 11, 2001. Had anyone predicted then that the nation would remain safe from terrorist attack this long, they would have been considered delusional. Commentators at the time were certain there would be many more attacks, even catastrophic ones, with the only question being when. At the time, it seemed an impossible task to protect the country from the onslaught of Islamic terror attacks we all feared were coming. Yet it was that very task to which President Bush and his team dedicated themselves.

In the end, perhaps it is the very success of their efforts these last seven years that, more than anything, has led to the decline of President Bush's reputation.  The success of the Global War on Terror has given the country the luxury of worrying about its recent economic setbacks to the exclusion of everything else. We’re no longer worried about the existential threat of terrorism.  The success of the Surge in Iraq (a surge that President Bush embraced late, to be sure, but embraced nonetheless), has caused the war to fade from the front pages as an issue.

But as he leaves office, President Bush can take some heart in the fact that while many have forgotten, there are still millions of us who remember. We remember what this country faced seven years ago. We remember like it was yesterday. We also remember the promise he made to us on September 20, 2001. We remember he warned us that the battle to win the war against Islamic terrorists would be long, fought in the twilight of secrecy or obscurity. He warned us that it would be a war with little credit given to its heroes, and with "victories" we might never even see in the open. But he promised that with the battle on, he would never leave the field until he was done, or spent in the effort.  We know, (though his plummeting popularity polls suggest most no longer do), what it took for him to keep that promise.

More needs to be done, to be sure, and new threats lurk around every corner. We pray our new President is up to the task. But though you'll never see this written anywhere but here, he has President Bush, and that magnificent military he commanded, to thank for how close he will be to victory in the war on Islamic extremist terror when he takes office.

It may be a hundred years before the history of the Bush administration can be written with sufficient detachment to be accurate. I am by no means a Bush apologist, and could spend the next several entries in this journal cataloguing his failures. But I won't.  I know that in many ways Bush has willingly sacrificed his reputation for victory in the cause to which he dedicated himself on September 20, 2001. He did what he thought was right, and never backed down in the face of the whirlwind. Of course, I will also never forget that there are nearly five thousand soldiers who made the ultimate sacrifice in the country's cause, too. President Bush would want all the focus on them, as it should be. I am sure his first prayers, in his quiet moments, are for them and their families.

In thinking of this President as he fades from the stage and makes way for his successor, I recall the words from an old Irish rebel tune from the late 1700's, The Minstrel Boy:

The minstrel boy to the war is gone

In the ranks of death you'll find him.

His father's sword he has girded on,

And his wild harp slung behind him.

"Land of Song," said the warrior bard,

"Though all the world betrays thee,

One sword, at least, thy rights shall guard;

One faithful heart shall praise thee."

Godspeed, Mr. President.