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Newt Gingrich today backs away from his intemperate and foolish branding of Supreme Court nominee Sonia Sotomayor as a racist. I have often made the point that in American discourse we have thrown the word “racist” around so indiscriminately for so long that it is now almost useless as terminology for purposes of reasoned discussion. We have no clarity as to what the heck we mean when we say it. Black people brought this about by near reflexive application of the term to circumstances which did not warrant it and now it is injudiciously thrown around by everybody, including people like Newt who certainly should know better. But that’s a subject for a different post. Back to the issue at hand.

Newt’s underlying assumption and assertion in this opinion piece is that judges carry out their duties from the bench with impartiality, entirely unaffected by their life experience or their identity. I disagree with this underlying premise. The exercise of judgment by those on the appellate bench is NOT completely impartial and unaffected by their life experience and identity, no more so than was the writing of the law which they interpret. That is a fiction.

The issue is whether Sotomayor will be influenced in the exercise of her judgment by these factors to some extent greater than is the case with the typical judge on the federal bench. In other words, every judge is influenced by their identity and life experience. We expect that influence to be mediated by their fidelity to a fair application of the law and there is a band of judicial behavior on the bench within which we expect judges to constrain the influence of their identity and life experience. The issue is whether or not Sotomayor in her career on the bench routinely operates outside of these norms in a manner that makes her unsuitable to serve on the Supreme Court. The answer to that question is clearly no.

Newt admits as much when he says..

In fairness to the judge, many of her rulings as a court of appeals judge do not match the radicalism of her speeches and statements. She has shown more caution and moderation in her rulings than in her words.”

In fairness to the judge indeed. We have a multitude of opinions from the bench upon which to assess whether Sotomayor applies the law with impartiality. We don’t have to guess or speculate. Review the opinions. There is no reason to believe that the Judge Sotomayor seen on the appellate bench in nearly 400 opinions will be any different than the Justice Sotomayor who will appear at the High Court. Even her critics admit, as Newt does here, that her appellate judicial record gives every indication that she interprets the law in a reasoned and impartial manner. She is clearly qualified. Confirm her.

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