June 23, 2009

Top Ten Questions for Sonia Sotomayor

I’m all about helping out my homeboys on the minority side of the Senate Judiciary Committee as the Obamites look to fast-track the confirmation of Supreme Court nominee Sonia Sotomayor. Herewith a few selected softballs for the hearings:

10.   Judge Sotomayor, we’ve all heard your suggestion that a wise Latina judge would make better decisions than a white male because of the “richness of her experiences.” Assuming a white male came from similarly disadvantaged circumstances, wouldn’t his experiences be “richer” based on several decades of pernicious reverse discrimination?

9.       Speaking of reverse discrimination, women are now awarded nearly 60 percent of all bachelor’s degrees from four-year universities in the United States and more than 60 percent of master’s degrees, although they make up just over 50 percent of the population. Under the “disproportionate impact” standard you and the Second Circuit applied in Ricci, isn’t that practically automatic grounds for remedial action on behalf of male students?

8.       President Obama has made much of his “empathy” emphasis in making judicial selections. Interestingly enough, in the Second Circuit’s ridiculously short opinion in Ricci, you and your colleagues in fact expressed empathy for Frank Ricci, the dyslexic firefighter who had friends read material to him so he could pass the promotion exam that the city of Hartford threw out because only one minority applicant qualified. Yet you affirmed the summary judgment invalidating the test. If you agree with the president on the application of empathy in decision-making – and your pro-women’s-protection discussion in your “wise Latina” speech indicates that you do – just who qualifies for judicial relief based on this empathy?

7.       Do you believe that an as-yet-undiscovered right to same-sex marriage is lurking alongside the other privacy rights discovered over the past generation in the “penumbra” of the Constitution?

6.       Yes, we all know that prospective Justices prefer not to signal in advance their opinions on justiciable controversies that might come before them. But if you do believe that a right to same-sex marriage exists, don’t senators have the right to have at least some hint of your thinking on the subject before voting on your confirmation, given that 39 of us were elected from states that have taken legal or constitutional action to define marriage as union of one man and one woman?

5.       And while we’re on the subject, can you give us a clue as to whether the Full Faith and Credit Clause overrides the Defense of Marriage Act, given that these 39 states are bound to face challenges to their laws based on same-sex marriages performed in states like Iowa?

4.       Can you tell us what you think of the applicability of the Ninth and Tenth Amendments in 2009, and whether you see any specific areas in which the rights of the people and the states, respectively, that are preserved by those amendments have been infringed or are in danger of being infringed by the federal government?

3.       There has been some discussion abroad in the punditocracy about the possibility of more states seceding in response to the expanding power of the federal government. It strikes me that a secession challenge in 2009 is more likely to be fought out in the courts than on the battlefield. Can you discuss your general viewpoint about the right of states to secede if they believe the Constitution is being violated in ways that prejudice their rights?

2.       How far do you think the grant of power to the federal government to regulate interstate commerce goes? Far enough that the federal government can mandate the hiring and firing of corporate officers and the kinds of products they manufacture and market?

1.       You’ve listed among your most important decisions the one that helped settle the Major League Baseball strike in 1995. But what do you plan to do about the atrocities of Interleague Play and the Designated Hitter?