Yesterday, President Barack Obama announced the nomination of Sonia Sotomayor to replace Justice David Souter on the Supreme Court. Sotomayor is a woman (so now Ginsberg will have someone to go to the bathroom with), a Hispanic, and a lefty -- and those appear to be the three most important things in her selection.

Barring some Clarence Thomas-type scandal, it's unlikely that Sotomayor's nomination would be derailed, but let me make a few points on some cases she's been involved with and things she's said as an appellate judge.

First, there's the inherent bigotry.

In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“I would hope that 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,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.

Change the gender to male and the race to white -- or even Asian -- and see if the left would scream had Justice Samuel Alito ever said something similar. I could accept a statement like this if she had said "different" rather than "better" -- that would seem obvious and not overly outrageous. This is racism and bigotry -- but it's acceptable on the left.

Then there's the issue of "empathy" and a case that's currently before the Supreme Court, Ricci v. DeStefano. Frank Ricci is a white firefighter who studied hard for an exam for promotion at the New Haven, Conn., fire department. After the results came back, the top 17 firefighters in line for promotion turned out to be 16 whites and 1 Hispanic. This result didn't help the city's efforts at diversity, so they threw out the test altogether. Ricci and the other firefighters sued on the basis of racial discrimination. The case was thrown out by a district judge and then a three-judge panel of the 2nd Circuit -- including Sotomayor -- upheld that ruling.

That's when the proverbial manure hit the fan. The Weekly Standard's Terry Eastland picks it up from there:

The panel’s order scanting the serious legal issues in the case compelled other judges on the court to urge Supreme Court review. A while back the Court heard the case, and while oral argument is not a reliable predictor of decision, the smart betting is on a 5-4 decision that at least ensures the plaintiffs their day in court. If John Roberts wins a fifth vote, I’d say the Court, with Roberts writing, will hold that New Haven engaged in racial discrimination. A decision in any respect friendly to the plaintiffs will mean that Sotomayor during her (probably) July confirmation hearing will be subject to more than perfunctory questioning about her role in the case. And also about her apparent indulgence of identity politics and how it affects her approach to judging. As Stuart Taylor explains in his most recent column, Sotomayor has “seriously suggested that Latina women like her make better judges than white males.”

So far in his administration Obama has sought to play down matters of race and ethnicity. The choice of Sotomayor ensures that they will be widely discussed. As will be Obama’s fuzzy jurisprudence of empathy, which Sotomayor endorsed in her remarks today at the White House. The obvious questions for Obama and his Justice-to-be: what do they feel (since we have to put it this way) about Frank Ricci, the lead plaintiff in the New Haven case, who studied as many as 13 hours a day in preparing himself for the exam? Who spent more than $1000 on books the city designated as homework for the exam? And who, because he is dyslexic and learns better by listening, paid to have them read them onto audiotapes? Ricci got one of the highest scores and would have been promoted but for the city’s decision to throw them out because of their inconvenient results. What do Obama and Sotomayor feel about this very diligent, disadvantage-overcoming, working-class guy?

To answer Eastland's question, I suppose the response would be: "Is he white? Screw him."

Finally, there is Sotomayor's opinion in the case of Didden v. Village of Port Chester, a property rights case that makes the Supreme Court's Kelo decision look downright high-minded. From law professor Forbes magazine columnist Richard A. Epstein:

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am mis
si
ng something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.

Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden).

I never expected Obama to nominate someone to the court that I would applaud. I realize that elections have consequences. However, I'm also confident that he could do better than Sotomayor.

On a related note: The double-standard in voting on judicial nominations needs to stop. The GOP needs to use the same measuring stick on Democrat-nominated judges that Democrats use on GOP-nominated judges. No more should a GOP nominee like Alito get confirmed 58-42 while someone like Ruth Bader Ginsburg gets confirmed 96-3.

If Democrats don't like that, then they can de-escalate the next time a Republican is in the White House.