The Sotomayor Selection: Being a Hispanic Female, Sonia Sotomayor, President Barack Obama's Pick to Be the Next Supreme Court Justice, May Seem a Shoe-In. but Her Very Political Correctness May Be What Dooms Her

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The judicial rulings of Judge Sonia Sotomayor of the Second U.S. Circuit Court of Appeals are "marked by diligence, depth and unflashy competence," the New York Times reported. The Times issued its critique shortly after President Barack Obama announced the New York judge is his choice to fill the vacancy on the U.S. Supreme Court created by the pending retirement of Associate Justice David Souter of New Hampshire. Conservatives and constitutionalists might be expected to find "unflashy competence" desirable after decades of spectacular discoveries in constitutional law by liberal jurists.

But experience suggests that a judge packaged in "diligence, depth and unflashy competence" may be concealing beneath his or her black robes a rather flashy and left-leaning agenda. Indeed, court watchers may recall one such judge who came to the U.S. Supreme Court 19 years ago, of whom it was expected that if he made any waves at all, they would be waves in the "right" direction, socially, politically and ideologically. That judge was David H. Souter of New Hampshire.

Another Souter?

Indeed, Sotomayor seems to fit the Souter profile, at least in lack of flash. Those who have waded through many of Souter's opinions find them dense with precedent and technical facts and sparse in quotable lines or original thinking. Souter and now-retired Justice Sandra Day O'Connor did join Justice Anthony Kennedy in an opinion issued 17 years ago this month in Planned Parenthood v. Casey that affirmed as a basic constitutional right the liberty of a woman to terminate her pregnancy, and that contained a rhetorical flight to the cosmos about "the meaning of the universe" and "the mystery of life," but that passage was written by Kennedy and has been quoted with obvious pride of authorship by him in subsequent decisions. It has also been scorned by Associate Justice Antonin Scalia as the "sweet mystery of life" passage.

If the "mystery of life" seems inscrutable and the passage of a pre-born infant to personhood remains above President Barack Obama's "pay grade," few nevertheless doubt that Judge Sotomayor will express agreement with the high court's Roe v. Wade ruling of January 22, 1973. The ruling elevated abortion, at the time permitted as a matter of "choice" in only a few states, to the status of a right guaranteed by the U.S. Constitution, which nowhere mentions or alludes to it. The ruling has also made nominations to the Supreme Court controversial because it became a litmus test demonstrating a nominee's level of judicial activism--for what is believed or at least suspected about a nominee's view of that ruling. Ironically, Judge Souter, during his confirmation hearings in 1990, was opposed by abortion "rights" leaders and supported by most abortion foes. His refusal to discuss the issue deepened the distrust of him by those who feared his confirmation would result in the overturning of Roe. Few on the "prolife" side thought the silent judge from the Granite State would disappoint them. With the Casey decision, the mask came off, and in numerous decisions since then, Souter has been as reliably left-handed as Whitey Ford.

Like Souter in 1990, Sotomayor has, as the good gray Times put it, "issued no major decisions concerning abortion, the death penalty, gay rights or national security." On the other hand, the Times found: "In cases involving criminal defendants, employment discrimination and free speech, her rulings are more often liberal than not." One interesting ruling was her finding that under the Freedom of Information Act, the government had to release the suicide note of White House attorney Vince Foster, found shot to death in an apparent suicide in 1993.

But what about the rights of prisoners on Guantanamo or citizens like Jose Padilla, who was held prisoner for five years without any charges against him? At this point one may only guess, hope, and, while it remains constitutionally permissible, pray about Sotomayor's leanings. …