Perhaps you've been too immersed in one more summer of undergraduate bliss before facing that life-defining LSAT or MCAT this fall. Or perhaps you've been debating the merits of Kobe Bryant's legacy if he fails to win a title without Shaq, or why all Hollywood seems to do now is remake old films instead of write new ones, to notice. If so, you are missing a show far more embarrassing than Kris Allen winning American Idol. This show is the hapless efforts of conservative activists to paint President Barack Obama's Supreme Court nominee Sonia Sotomayor as a liberal ideologue unfit for service. With figures such as Rush Limbaugh admitting the chances of stopping her nomination are minimal, the question must be asked: Why the rabid opposition in the first place?
In a somewhat tragic historical twist of fate, Sotomayor, a Latina woman who grew up in the ethnically rich South Bronx and now sits on a federal bench dominated by white, ruling class males, is being cast by conservatives not as the discriminated but the discriminator. To bolster this claim, conservatives are pointing to her appellate court ruling against firefighter Frank Ricci, a dyslexic white male who in 2003 aced a lieutenant's promotion test given by the city but was denied promotion when all 19 black applicants who took the test failed. A Supreme Court ruling on this case, likely in Ricci's favor, should come this month. Nonetheless, conservatives are using it to say Sotomayor is guilty of "reverse racism."
One can't help but sense the Shakespearian-level irony in this assault on Sotomayor. Not only do the claims she is racist reek of politics - a thinly veiled, desperate ploy to reconnect with blue-collar voters, who may not be listening anyway and who trended Obama in the previous election; it more disturbingly continues the trend of conservative historical amnesia. After nominating their pal Harriet Miers to the high tribunal failed, Rovian Republicans applauded their nominee Samuel Alito's "empathy" and regard for lived experience when he said his own Italian-American heritage and their history of discrimination influenced his perspective in cases on discrimination. It is perplexing and sad that suddenly Sotomayor's admitted influences from her own background warrant a flogging while Alito's merit conservative applause.
Alternatively, conservative legal theorists have labeled Sotomayor an activist whose decisions are "results-oriented" and too focused on outcomes rather than the law. The truth is that in 15 years on the federal bench (more than either of President George W. Bush's nominees), Sotomayor does not appear to have a compelling attachment to any particular judicial theory.
The "I forgot" moment in this assault is that one of the conservative judicial movement's favorite sons, the late chief justice of the United States Justice William Rehnquist, was perhaps the most result-oriented justice in the history of the court. He never consistently adhered to any theory, instead using the "original intent" theory or other legal theories whenever it was most convenient to achieve a desired result. In many respects, the careful, fact-based reasoning innate to Sotomayor's opinions resemble more a conservative "ideas have consequences" approach, or the approach of her moderate predecessor, Justice David Souter, than they do any liberal legal theory.
If her confirmation is the endgame, then the net benefit of rabid opposition must outweigh the end result to serve a purpose. Here it does not. It is merely political grandstanding that can only further the chasm between the base of the Republican Party and the pulse of the country, and for conservatives, it creates the greater risk that Obama will take a "damn the torpedoes" approach to his next nominee, appointing not a moderate like Sotomayor but rather a judge who actually fits the bill of "liberal ideologue" or "judicial activist," leaving conservatives with little or no political capital to get in the way.
Neil W. Blackmon is a UF Levin College of Law alum.
