U.S. Sen. John Cornyn, R-Texas, is absolutely right when he asserts that the confirmation of Sonia Sotomayor to the nation's highest court should be a rigorous one.

He could have gone a step farther and added that the confirmation process should be a fair one. Cornyn, however, fell into the attack launched by his party's ultraconservative wing, which took great umbrage at comments attributed to the U.S. Supreme Court nominee a federal appeals court judge in New York that were quite provocative.

First, the ultraconservatives say, Sotomayor said somewhere that judges make policy.


Before calling for the defibrillators, those taking offense at Sotomayor's supposed comments might want to read Plessy v. Ferguson or Brown v. Board of Education. Or, closer to home or much more recently, the Texas 3rd Court of Appeals decisions that stood both law and common sense on its head by declaring in a campaign finance case that the definition of "funds" did not include checks.

If all that musty reading is just too much bother, they might want to quote Sotomayor accurately or in full context.

She did say appeals courts are where policy is made, but she was quick to add: "I'm not promoting it, and I'm not advocating it The court of appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application."

Like it or not, she accurately explained a portion of the role of judiciary under that treasured system of checks and balances.

Legislatures are not sacrosanct, and neither are laws they write. Legislation is written by human beings making compromises that are sometimes downright ugly. The judiciary is there to check that rights are not trampled during the deal making.

The other comment that caused a stir in the ultraright bullpen paraphrased Sotomayor as saying her Latina upbringing makes her a better judge than a white male. Sotomayor's parents moved to New York from Puerto Rico.

What she said was this: "Gender and national origins may and will make a difference in our judging." But wait, there's more. She paraphrased a fellow woman jurist, who, Sotomayor said, "believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law."

Which should put her pretty much in sync with what Cornyn says he's looking for. Cornyn's comments are significant because of his ascendancy in the Republican Senate leadership and his seat on the Judiciary Committee.

Cornyn will also be watched closely during the confirmation process because his home state is rich with Latino voters. Gratuitous insults will further alienate Latinos from the Republican Party.

Cornyn said he wants the confirmation process to allow Sotomayor "to prove herself to possess the impartiality, integrity, legal expertise and judicial temperament" of a Supreme Court justice.

She did just that by defending the right of a police employee in New York to send "patently offensive, hateful and insulting" racist communications on his free time. She was on the losing end of the decision, but she wrote that "concerns about race relations in the community" should not trump "the centrality of the First Amendment in our lives" when government is "confronted with speech it does not like."

Others have questioned her intellectual capacity for the job. Sotomayor was at the top of her class at Princeton and was an editor at the Yale Law Journal and was appointed to the bench by President George H.W. Bush.

Barring some earth-shaking development, there's no reason that Sotomayor won't survive a fair and unbiased review. Cornyn plays a huge role in setting the tone. Let's hope he sets the right one.

-The Austin American-Statesman