U.S. Supreme Court Associate Justice Sonia Sotomayor was nominated by President Obama in 2009. She graduated with honors from Princeton University in 1976 and from Yale Law School in 1979. But this week, she easily put herself in contention for one of the very worst Obama appointments in a field of very strong contenders. She apparently believes that the Constitution is whatever her far left ideological preferences say it is. For evidence of this, I point readers to her rant in dissent to the majority decision by six of her colleagues this week that upheld the right of voters in Michigan to ban so-called affirmative action as a basis for deciding admission to state colleges. (See link for full majority and minority opinions at the end of this post.)
Not only did Sotomayor base her dissent on her personal benefits from affirmative action as a student, but she further imagined that the Constitution actually requires affirmative action to correct past racial discrimination. She wrote in part that the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.” Translation: Sotomayor believes that picture IDs for voting are unconstitutional. This dissent is beyond delusional in that she cannot cite any language in the Constitution that supports her crazy view and does not even try. Justice Elena Kagan had to recuse herself from voting on this case because she had worked on it when she was Solicitor General so the decision was 6 to 2 in favor of the Michigan law. But other liberal justices joined conservative justices in upholding the right of Michigan voters to determine their own policy on college admissions.
What is most remarkable about the Sotomayor radical dissent is not that she disagreed wih six other justices, but that she made no pretense at all of basing her dissent on the language of the Constituion. The dissent was all about her personal biography and social policy preferences. She went directly to what she saw as the merits of affirmative action and did not even address the question of whether voters in Michigan had the right to vote on the policy. Her eagerness to accuse by implication even her liberal allies on the Court of racism puts her intellectual dishonesty and sloppy thinking on full display for all to see.
In the past, liberal justices have at least tried to find some remote connection to the Constitution in order to justify their personal preference even if they had to claim they discovered some new right in the imaginary "penumbra" of the document. But Sotomayor skips even that step in her dissent and directly argues why she thinks the policy of affirmative action was desirable FOR HER. That radical departure from even liberal traditions on the Court is what makes her the worst Obama judicial appointment in my opinion. Maybe someday even liberals who still believe in the rule of law might come to a similar conclusion.
It must be sadly noted that justices in both the majority and minority felt free to comment on the merits of the affirmative action policy itself rather than limit their opinion to only the question directly before the court which was not affirmative action policy per se but only the right of the Michigan voters to approve the ban. Some of the opinions were written in such a slovenly manner as to make it very difficult to distinguish if a justice was commenting on dicta or on the actual law of the case.