Diary

Soto is no Harriet Miers, and neither was Miers

The main qualifications for a Justice of the Supreme Court are character and courage

This sixth DeVine Law analysis of the nomination process to fill the retiring Souter seat on in the nation’s highest court is less about Judge Sonia Sotomayor, and more about refuting much of the conventional wisdom that even many conservatives accept concerning what is relevant in determining a nominee’s competence and other qualifications.

Supreme Court justices take an Oath to “uphold the Constitution”, so, let us focus on what makes it more likely that a nominee can be relied upon to so uphold the supreme law of the land.

Of course, a nominee must be “competent”, but too often, this component has been used to discredit nominees with false criteria so as to avoid the more relevant issues related to the Oath.

The liberal New Republic trashed Judge Sotomayor’s intellectual prowess and temperament weeks ago, soon after Justice Souter announced his retirement and word leaked that she was on Obama’s short list. These are red herrings that conservatives and Republicans would be wise to ignore, along with the recent talking point concerning the reversal rate of her Circuit Court opinions that have been reviewed by the Supreme Court.

Reversal rates tell one nothing without knowing the specifics, especially given the ideological split on court and the too frequent occasions for Justice Anthony Kennedy to uphold liberal precedents. I suspect that the more telling statistic would be all the unconstitutional opinions of Sotomayor that have been upheld.

Now, to the more primal aspects of “competence” that get passed around thanks in large part to elitist snobbery, beltway loyalty and an America culture raised on the deification of lawyers.

We arrive at the issue of how “smart” is the nominee. Of course, the liberal culture that dominates the media, press and academia equate the term with agreeing with liberal positions on issues, but it is also trotted out on behalf those that matriculated at Ivy League schools.

Eureka! Reagan, but I digress.

One assumption also used as a straw man to suggest that we need the more erudite literary writers is that one has to be able to “spar with a Breyer or Scalia”. We heard this in derogation of Harriet Miers with respect to the imagined as persuadable Breyer and we hear it now with respect to Soto’ going mano y mano with Scalia.

Its all Poppycock now, just as was when President George W. Bush nominated his ten-year vetted crony.

No one can name one significant case whose result was changed due to superior logic in the past 50 years. Is it preferable, all things being equal, that more talented writers draft opinions to make the law more preciselt defined? Of course, but what matters in the first instance is what the result will be, and on that, we arrive at the main point.

The Constitution is not a puzzle devised by the Framers to be divined to us by geniuses. It is written in plain English for We the People, and the relative advantage of having a Phi Beta Kappa from Harvard vs a Texas graduate interpret it is quite miniscule.

What matters is if they accurately comprehend what the Constitution says and intend to uphold it, or if they don’t comprehend it and can’t, or as is more often the problem, that they wish to re-write the Constitution while pretending to uphold it.

With respect to Miers, there was no reason to doubt that she would vote the same as Alito, but conservatives were resentful that Bush didn’t pick from the widely known as reliable conservative bench on the Circuit courts. That was understandable. What wasn’t, was the way the elites used red herrings about her intellect to slander her.

And so, we arrive at Sotomayor, who is obviously intellectually qualified to serve, even if whe hadn’t been Phi Beta Kappa at Princeton.

What makes her unfit to serve concerns her lack of character and courage.

Why character? Because I assume she truly does understand the plain meaning of the Constitution but chooses to treat it as suggestion rather than the law. I recognize that some otherwise smart people can be brainwashed to believe that it is legitimate to treat the Constitution as liberals do, but I confess I can’t diagnose the cause, and so don’t even try. It doesn’t matter why liberals do what they do, only that they do.

And what they do is commit what ought to be the impeachable offense of not upholding the Constitution, ad this goes for Breyer, Ginsburg, Souter and Stevens as well.

They usurp the the Liberty of We the People to govern ourselves and install themselves as Oligarchs ruling over us as surely as did the King of England that we threw off in the Revolution.

Sotomayor fits the “living constitution” mold with her promises to “make policy” from the bench, not to mention her obsession with her superior “Latina-ness” and race-based Ricci decision, but seriously, how could we trust anyone nominated by a man that seeks to “break free” from the constraints of a negative Constitution?

So, with respect to Sotomayor, we don’t even reach the issue of courage, given her well-documented allegiance to the character-challenged, illegitimate view of the document she would be sworn to uphold.

Indeed, we only arrive at the character issue with Republican nominees like Souter, Kennedy and O’Connor that “grow” out of their character through cowardice.

Ideology or judicial philosophy matters most. The sad fact is that there is only one legitimate such philosophy, given the umpire-like task at hand. Read the words of the contract between the people and its government and faithfully interpret it according to the plain meaning and intent of those words where possible (most places), much like the “philosophy” one would apply to one’s mortgage contract and to their own words uttered in opinions.

For would one want a judge to interpret their principle, interest and mortgage payment provisions of their own home mortgage so as to increase same based on some other philosophy? Would one want their own judicial decrees re-interpreted to make black be white?

The Constitution is written.

[Just to be clear, I have no information to conclude that Harriet Miers wasn’t an intellectual giant.]

Mike DeVine’s Charlotte Observer, Examiner.com and Minority Report columns

“One man with courage makes a majority.” – Andrew Jackson

Originally published @ Examiner.com, where all verification links may be accessed.