Judge not the judge . . .

Sonia Sotomayor. The name of the day.

For those of you who spent the last 24 hours in a cone of silence, Sonia Sotomayor has been nominated by President Obama to be a member of the U. S. Supreme Court.

Judge Sotomayor comes from a Puerto Rican family of modest means. Her mother worked hard to see that her daughter had a chance to do great things. And Judge Sotomayor did not disappoint her mother. She received a scholarship to Princeton, where she was graduated number one or two in her class. She was graduated from Yale Law School, perhaps the second best law school in the country (still quite a distance behind the University of Alabama School of Law), where she made the law review. After being graduated from Yale, Judge Sotomayor practiced law, became a prosecutor, was appointed a federal district judge, then a judge on the U. S. Court of Appeals. Now she has been nominated to be a judge on the U. S. Supreme Court.

Her qualifications for the job cannot be legitimately questioned. But it is proper to consider whether a nominee will be able to put aside personal agendas, causes and beliefs in the conduct of her or his job.

The most popular objection to Judge Sotomayor arises from a youtube video in which she makes reference to the fact that the court "makes policy." She then says she does not believe that is a correct function of the court. But this ten seconds of video taken out of context is being heralded as a basis of objection to Judge Sotomayor, who, on the basis of the video clip, would clearly be an "activist" judge.

The second popular objection to Judge Sotomayor arises from an opinion she wrote for a three judge panel, in which she upheld the dismissal of claims by white firemen in a reverse discrimination case. The opinion is brief, and does not address the constitutional questions raised by firemen.

The case has been heralded as an example of an "activist judge" in action, advancing her own support for affirmative action from the bench.

Be very suspicious when you hear the term "activist judge." What it usually means is that the one making the accusation fears that a judge will make decisions with which the accuser disagrees.

Referring to the firemen case people who should know better have accused Judge Sotomayor of being an activist judge, upholding affirmative action. But in making the decison, Judge Sotomayor was simply giving deference to the trial court and following the established legal precedent of the Circuit in which she sits. That is not being an activist judge. That is the opposite of being an activist judge.

Perhaps Judge Sotomayor should have done more in the firemen case. Perhaps she should have addressed the wrongs done to the Plaintiff firemen. But do not be fooled by the rhetoric of opponents to her appointment. To change the law, to help the firemen, she would have had to overturn the decision of the lower court and at least modified precedent of her own court. She would have had to be the "activist" judge that her opponents accuse her of being. You can't have it both ways, unless of course you just don't care about fairness and truth.

There are plenty of times that I would like to see an "activist" judge get hold of government policies that I would like to see changed. Instead, the kinds of "activist" judges I see are overturning the verdicts of juries who found in favor of a citizen over a big business, or decide that the plain language of a statute can be ignored if it is going to keep a person accused of a crime from being convicted.

And we all remember those activist Judges on the U. S. Supreme Court who decided the Presidential election of 2000. Perhaps the most blatant, ultimate example of judicial activism.

We will never know, but it is quite possible that the pitiful course that the United States has taken since 2000 can be blamed on that activist decision by the U. S. Supreme Court, a decision that named George Bush as President.

So don't be fooled by this "activist" judge accusation. It can mean nothing, it can mean anything.

Try to learn the truth. If you don't think Judge Sotomayor can be fair based on her past performance as a judge, be against her.

But don't just drink the kool-aid, whether it's red or it's blue,

or served up by pure white hands . . .

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