It’s all in the interpretation

Ascending again from originalism’s detritus is a method of opposition leftists are credited with originating but, in the case of Sonia Sotomayor, suddenly scorn. So appears over the Latina a specter, that of racism, whether of illusory substance or something firmer a thing for public opinion, more fickle than the fates, to determine.

Talk radio king Rush Limbaugh has juxtaposed in reference to Sotomayor a name and an image of a man history has endeavored assiduously to forget, that of David Duke, the former KKK grand wizard and presidential primary sideshow. The reference sprung from two things, a speech by Sotomayor in 2001 and her former affiliation with the National Council of La Raza, an Hispanic civil rights group.

Regarding the speech, President Barack Obama has intervened with an apology as apologetics for his Supreme Court nominee. In the amenable milieu of the University of California at Berkeley, Sotomayor declared that on subjects judicial “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Perhaps cognizant of a slight public tremor precipitated by the fact that white males persist in their presence among the populace and, more importantly, his constituents, Obama attempted rhetorical rescue. “I’m sure she would have restated it,” the president said. Then he provided an explanation that tells much. “... [S]he was simply saying that her life experiences will give her information about struggles and hardship that people are going through – that will make her a good judge.”

Here surfaces the prevailing tendency in that brand of jurisprudence, so-called, favored by Obama and his ilk, to interpret law not through the sharp, clear lens of original meaning – the method favored by Robert Bork, the high court nominee Democrats savaged – but through the lens of foggy subjectivism, represented by “life experiences.” Here is the ground where arguments over her suitability for the bench ought to be fought, a prospect looming as unlikely given the demonstrated proclivities of both parties.

Bias, presumably a bad thing in the judiciary, creeps in on the wings of pathos unrestrained by the tether of sound principle, the sort of which is reflected in the Constitution in its original meaning and form, sensibly amended, as the founders intended.

Judges who reach for a rock rather than sand upon which to found their decisions find it in originalism. Judges who reach for experience stumble into bias’ reach and the temptation to treat founding principle as Reformer Martin Luther feared would be the case with Scripture, turning it “into a wax nose whereby we shape it, twist it and distort it to make it say what we want it to say.”

Questions over Sotomayor’s apparently self-elevating reference to her wisdom as a Latina and her links to La Raza are especially valid at that particular point where they reflect the potential for bias in her judicial interpretations. Casting her into those unseemly, unlit corners inhabited by history’s cretins – unless it can be proved beyond rhetoric – only provides ready avenues for Sotomayor’s backers to depict their opponents as extremists.

In the conservative chasm left by the passing of William F. Buckley, who once stood athwart history, Limbaugh’s voice is the most sonorous. In raising Duke from the ashes, he clangs. Wise Americans of any hue, especially those charged with deciding Sotomayor’s fitness for the court, would do well to gaze beyond rhetorical flames to questions of real import, namely would she hew on the court to the firmness of original truths or the loose, shifting ground of postmodern sentimentality? The founders’ America suffers for the latter.