JUDGE SONIA SOTOMAYOR, A JUDGE TOO FAR!
Where is the justice in Obama’s world?
By Frances Rice
Using personal attacks, Democrats malign black Republican judges, such as Judge Janice Rogers Brown and Justice Clarence Thomas. During the Bush Administration, Democrat Senator Ted Kennedy called black Republican judicial nominees "Neanderthals”. Democrat Senator Harry Reid slurred Supreme Court Justice Clarence Thomas as someone who could not write good English. “Slap at Thomas stinks of racism,” was the headline of the New York Daily News’ December 7, 2004 editorial. Democrats also denigrated Republican Hispanics Alberto Gonzales and Miguel Estrada with no backlash from the Hispanic community.
Now that President Barack Obama has nominated Judge Sonia Sotomayor, a fellow far-left wing radical, for a position on the US Supreme Court, Democrats are poised to accuse Senate Republicans of racism if they oppose her on grounds of incompetence (she was overruled frequently, as she likely will be in the next few weeks concerning the City of New Haven fire fighters) and lack of judicial temperament. Click here to view the video of Judge Sotomayor stating that the court is where policy is made: http://www.youtube.com/watch?v=OfC99LrrM2Q . In this video, Judge Sotomayor displays her disdain for the rule of law and her attitude that decisions should be based on personal ideology, rather than legal merit.
Concerning the claim that Judge Sotomayor would be the first Hispanic US Supreme Court justice, The Wall Street Journal reports that "Sonia Sotomayor is frequently described as being prospectively the first Hispanic Supreme Court justice. Apparently this isn't technically true. The first Hispanic justice was Benjamin Cardozo, who served from 1932 to 1938. USA Today reports": http://www.usatoday.com/news/washington/judicial/2009-05-26-courtcardozo_N.htm
With the nomination of Judge Sotomayor, Obama has, once again, stuck his finger in the eye of America as he continues to erode American fundamental values and tenets. A basic tenet is that all people are treated equally under the law. Obama’s injection of “empathy” into the criteria for judges leaves all of us vulnerable to being treated unfairly by activist judges who make decisions based on race or gender, not the merits of the case.
Judge Sotomayor approved discrimination based on the color of the skin of 20 New Haven firefighters who were denied promotion even though they had the highest test result. A Hispanic jurist appointed by Bill Clinton and a colleague of Judge Satamayor found her decision troubling. Judge Sotomayor also showed her racism when she stated that Hispanic women are better equipped, due to "inherent physiological or cultural differences," to make better decisions than white men.
In his article “Justice Thomas Keeps the Faith at:
http://www.realclearpolitics.com/articles/2006/05/justice_thomas_day_job_part_ii.html
Thomas Sowell wrote: “Contrary to what many say in the media, or even in academia, it is not a question of whether a judge is personally "conservative" or "liberal." The real question is whether he believes he is there to uphold the constitution or the constitution is there to authorize him to do whatever he wants to do.”
The following is a press release from Project 21, a black leadership network, that provides clarity from a black prospective about why Republicans should oppose Judge Sotomayor.
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Black Leader Urges Senate Scrutiny for Sotomayor Supreme Court Nomination - No Rubber Stamp for Controversial Nominee
With President Obama's nomination of U.S. Circuit Court judge Sonia Sotomayor to the vacancy being created by U.S. Supreme Court Justice David Souter's impending retirement, Mychal Massie, chairman of the Project 21 black leadership network, is urging senators to take a very close look at her record before commenting on her fitness for the job.
"Of all the possible nominees suggested over the past few weeks, it appears Obama selected the most radical one," said Massie. "The U.S. Senate has a duty to scrutinize Judge Sotomayor's record to ensure she has the demeanor and aptitude to be elevated to such a solemn post."
Massie continued: "During the Bush Administration, it was common for liberal senators to demand a consensus nominee with broad political appeal. By selecting an avowed liberal in Sotomayor, it would appear Obama is not following the stipulation he and his former colleagues sought to impose upon his predecessor. This should open up the nomination to the scrutiny it justly deserves."
The Sotomayor nomination, Massie notes, is the perfect catalyst to begin a national debate on the appropriateness of "judicial activism" - when judges essentially cut lawmakers out of the legislative process and try to rule from the bench. For example, in a 2001 speech at the University of California at Berkeley School of Law, Sotomayor said it was appropriate for a judge such as herself to use her "experiences as women and people of color" to "affect our decisions." In 2005, she told a crowd at the Duke University Law School that the "Court of Appeals is where policy is made" - rather than by lawmakers beholden to voters.
Massie commented: "Considering Justice Souter's record, Sotomayor will not change the balance of the Supreme Court. But she will likely dramatically alter the temperament of the Court and the way in which it operates. Senators must keep this in mind as they take on the very solemn process of vetting her fitness."
Project 21, a nonprofit and nonpartisan organization, has been a leading voice of the African-American community since 1992. For more information, contact David Almasi at (202) 543-4110 x11 or Project21@nationalcenter.org, or visit Project 21's website at http://www.project21.org/P21Index.html
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Following are seven related articles concerning the nomination of Judge Sonia Sotomayo to the US Supreme Court.
http://townhall.com/columnists/ThomasSowell/2009/05/27/sotomayor__empathy_in_action
Sotomayor: "Empathy" in Action
Thomas Sowell
Wednesday, May 27, 2009
It is one of the signs of our times that so many in the media are focusing on the life story of Judge Sonia Sotomayor, President Obama's nominee for the Supreme Court of the United States.
You might think that this was some kind of popularity contest, instead of a weighty decision about someone whose impact on the fundamental law of the nation will extend for decades after Barack Obama has come and gone.
Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.
If you were going to have open heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is or by the best surgeon you could find-- even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?
If it were you who was going to be lying on that operating table with his heart cut open, you wouldn't give a tinker's damn about somebody's struggle or somebody else's privileges.
The Supreme Court of the United States is in effect operating on the heart of our nation-- the Constitution and the statutes and government policies that all of us must live under.
Barack Obama's repeated claim that a Supreme Court justice should have "empathy" with various groups has raised red flags that we ignore at our peril-- and at the peril of our children and grandchildren.
"Empathy" for particular groups can be reconciled with "equal justice under law"-- the motto over the entrance to the Supreme Court-- only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.
Nothing demonstrates the fatal dangers from judicial "empathy" more than Judge Sotomayor's decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.
When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn't have "empathy" with those predominantly white males who had been cheated out of promotions they had earned.
Fellow 2nd Circuit Court judge Jose Cabranes commented on the short shrift given to the serious issues in this case. It so happens that he too is Hispanic, but apparently he does not decide legal issues on the basis of "empathy" or lack thereof.
This was not an isolated matter for Judge Sotomayor. Speaking at the University of California at Berkeley in 2001, she said that the ethnicity and sex of a judge "may and will make a difference in our judging."
Moreover, this was not something she lamented. On the contrary, she added, "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."
No doubt the political spinmasters will try to spin this to mean something innocent. But the cold fact is that this is a poisonous doctrine for any judge, much less a justice of the Supreme Court.
That kind of empathy would for all practical purposes repeal the 14th Amendment to the Constitution of the United States, which guarantees "equal protection of the laws" to all Americans.
What would the political spinmasters say if some white man said that a white male would more often reach a better conclusion than a Hispanic female?
For those who believe in the rule of law, Barack Obama used the words "rule of law" in introducing his nominee. For those who take his words as gospel, even when his own actions are directly the opposite of his words, that may be enough to let him put this dangerous woman on the Supreme Court.
Even if her confirmation cannot be stopped, it is important for Senators to warn of the dangers, which will only get worse if such nominations sail through the Senate smoothly.
http://townhall.com/columnists/KenBlackwell/2009/05/27/on_sotomayor,_obama_can%E2%80%99t_hide_behind_the_bushes
On Sotomayor, Obama Can't Hide Behind the Bushes
Ken Blackwell
Wednesday, May 27, 2009
In an attempt to hide Judge Sonia Sotomayor's radicalism, President Obama characterized her as a judicial moderate first appointed to the federal bench by a Republican president.
However, the president's nomination of Judge Sotomayor is nothing short of a declaration of war against America's gun owners. If gun owners mobilize and unite, it's possible to stop this radical nominee.
Last year the Supreme Court handed down the landmark decision in D.C. v. Heller, holding that the Second Amendment right to bear arms applies to individual citizens in their private lives. The ruling marked a turning point in gun rights in this country.
In the past year, the biggest question courts now face is whether the Second Amendment applies to the states. That may sound crazy, but the reality is that the Bill of Rights only controls the federal government, it doesn't apply directly to states or cities. Only the parts of the Bill of Rights that are "incorporated" through the Fourteenth Amendment apply to the states.
Since the Heller decision, only two federal appeals courts have written on the Second Amendment. That's six judges out of about 170. Of those six, three said the Second Amendment does apply to the states. And those judges were out of the liberal Ninth Circuit in California, and included a judge appointed by Bill Clinton and another appointed by Jimmy Carter. - Even leftist judges can get this.
But not Judge Sonia Sotomayor. She is one of only three federal appellate judges in America to issue a court opinion saying that the Second Amendment does not apply to states. The case was Maloney v. Cuomo, and it came down this past January.
That means if Chicago, or even the state of Illinois or New York, wants to ban you from owning any guns at all, even in your own house, that's okay with her. According to Judge Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that's okay under the Constitution.
This issue could not be more important. Yesterday, on the very day President Obama has announced Judge Sotomayor's nomination, the National Rifle Association is arguing Second Amendment incorporation in court before the Seventh Circuit in a case challenging the Chicago ban on handguns.
If this case, or one like it, goes to the Supreme Court, Justice Sotomayor would say that Chicago can ban all your guns. If she can persuade her liberal colleagues on the Court to join her, it could become the law of the land that states and cities can ban guns. Should that happen, then you can expect anti-gun liberals in state legislatures to rush to pass new state laws doing exactly that.
The White House is telling us all about Judge Sotomayor's compelling personal story - and it is an amazing story of what is possible "only in America." But compelling personal stories are not the question. Miguel Estrada, whom President George W. Bush nominated to the D.C. Circuit appeals court and was planning on nominating to the Supreme Court, had a compelling story as a Hispanic immigrant who legally came to this country not even speaking English. Democrats filibustered Mr. Estrada.
Supporters point out that Judge Sotomayor was first appointed by George H.W. Bush for the federal trial court - before Bill Clinton elevated her to the Second Circuit appeals court. That's true, but George H.W. Bush also gave us Justice David Souter, so clearly he wasn't too careful about putting liberals on the federal bench. We can't allow the president to hide behind the Bushes.
But when it comes to gun rights, we don't need to guess. Judge Sotomayor has put in writing what she thinks. President Obama has nominated a radically anti-Second Amendment judge to be our newest Supreme Court justice.
There are a number of pro-Second Amendment Democratic senators from deeply red states, including Mark Begich from Alaska, Jon Tester and Max Baucus from Montana, Ben Nelson from Nebraska, Byron Dorgan and Kent Conrad from North Dakota, and Tim Johnson from South Dakota.
These senators will jeopardize their seats if they vote to support an anti-gun radical for the Supreme Court. Second Amendment supporters will now be up in arms over this radical anti-Second Amendment nominee, and you should never underestimate the political power of American gun owners.
http://online.wsj.com/article/SB124338457658756731.html
The Wall Street Journal
REVIEW & OUTLOOK
MAY 27, 2009
The 'Empathy' Nominee
Is Sonia Sotomayor judically superior to 'a white male'?
In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom.
This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.
"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers," Mr. Obama said yesterday in introducing Ms. Sotomayor. "It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court."
In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, 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."
We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.
There are signs of what this means in practice in her lower court decisions. One of them is Ricci v. DeStefano, involving the promotion of white firefighters in New Haven and now pending before the Supreme Court. In the case, heard by a three-judge panel including Judge Sotomayor, the city refused to certify promotion exams when the results of the exam would have elevated 18 white firefighters and one Hispanic -- an outcome that would have underrepresented minorities. The firefighters sued, charging discrimination.
After the three judge panel issued a brief opinion repeating the district court's decision, the appeals court declined to rehear the case en banc, an outcome which infuriated Ms. Sotomayor's colleague and fellow Clinton appointee Jose Cabranes. In a dissent joined by five of his colleagues, Judge Cabranes criticized the slip-shod handling of the case by a majority that lacked the courage of its racial preference convictions. The "perfunctory disposition" of the opinion, he noted, "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal."
Judge Cabranes added that the discrimination issues raised by the case were "worthy of review" by the Supreme Court, which took the case and may well overturn the Sotomayor panel's ruling. The case raises the question of whether a judge with an avowed commitment to applying her own "experience" to cases was disinclined to an argument made by those not sharing that personal experience.
Or consider the result last year in Knight v. Commissioner, in which the Supreme Court unanimously upheld her ruling in a tax case involving individual tax deductions, even as her reasoning drew a rebuke from Chief Justice John Roberts. The Second Circuit opinion "flies in the face of the statutory language," he wrote for the Court.
In April, the Supreme Court overturned 6-3 her 2007 ruling in Riverkeeper v. EPA in which she found that the EPA could not consider cost-benefit analysis in judging whether companies need to upgrade to the best technology available, even when the costs were wholly disproportionate to the benefits. And in the 2006 case of Merrill Lynch v. Dabit, the Court ruled 8-0 to overturn her position that a state class-action lawsuit against Merrill Lynch was not pre-empted by federal law.
Even the best judges get overturned, of course, but the issue here is less the result than Judge Sotomayor's legal reasoning. As a lower court judge, she was restrained by a higher authority. On the Supreme Court, she is limited only by the other Justices she can win over to her arguments.
As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record.
http://www.realclearpolitics.com/articles/2009/05/27/empathy_v_impartiality.html
May 27, 2009
Empathy vs. Impartiality
By Jonah Goldberg
Why make this complicated?
President Obama prefers Supreme Court justices who will violate their oath of office. And he hopes Sonia Sotomayor is the right Hispanic woman for the job. Here's the oath Supreme Court justices must take:
"I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God."
Contrast that with Obama's insistence that the "quality of empathy, of understanding and identifying with people's hopes and struggles" is the key qualification for a Supreme Court justice. According to White House talking points, Judge Sotomayor's "American story" of humble origins -- she was raised in the South Bronx -- best prepares her for the high court because it shows "she understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts."
Obama says law and precedent should determine rulings in "95 percent of the cases." But in the really hard and important cases, justices should go with their heart. "In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."
Now, keep in mind that 5 percent of Supreme Court cases isn't everything, but it's nearly 100 percent of what we argue about as a country. For the hard cases Americans care most about, Obama says empathy should rule.
So, what's wrong with empathy?
Well, nothing. Empathy is a fine thing, and all decent people should employ it, including Supreme Court justices.
But Obama has something specific in mind when he talks about empathy. He wants the justice's oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.
I don't think this is open to much debate. When Obama voted against Chief Justice John Roberts' confirmation, he said that Roberts didn't have the "heart" to vote the right way in those 5 percent of cases. Rather than Roberts the Cruel, Obama explained, "we need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old -- and that's the criteria by which I'll be selecting my judges." Cue Sotomayor the Empathic.
The reasoning here is a riot of dubious assumptions. Obama and Sotomayor both assume that a firsthand understanding of the plight of the poor or the African-American or the gay or the old will automatically result in justices voting a certain (liberal) way. "I would hope," Sotomayor said in 2001, "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." This is not only deeply offensive, it is also nonsense on stilts. Clarence Thomas understands what it is like to be poor and black better than any justice who has ever sat on the bench. How's that working out for liberals?
Of course, liberals say that if you don't agree with their policy prescriptions on, say, racial quotas or abortion, it's because you don't care as much as they do about minorities or women. Which is why they've demonized Thomas as a villainous race-traitor. This, too, is aggressively stupid. But even if it were true, why are we talking about policy preferences and the courts? Judges aren't supposed to have policy preferences, despite Ms. Sotomayor's insistence that the courts are "where policy is made."
More important, who says conservatives are against judicial empathy? I, for one, am all for it. I'm for empathy for the party most deserving of justice before the Supreme Court, within the bounds of the law and Constitution. If that means siding with a poor black man, great. If that means siding with a rich white one, that's great too. The same holds for gays and gun owners, single mothers and media conglomerates. We should all rejoice when justices fulfill their oaths and give everyone a fair hearing, even if that's now out of fashion in the age of Obama.
http://online.wsj.com/article/SB124338359957256605.html
The Wall Street Journal
OPINION
MAY 27, 2009
Questions for Sotomayor
The confirmation process shouldn't be a rubber stamp.
By NEOMI RAO
Yesterday President Barack Obama announced his nominee to replace retiring Supreme Court Justice David Souter. She is federal circuit court judge Sonia Sotomayor. What sorts of questions should senators and the American people ask a nominee to the Supreme Court?
Let's assume Ms. Sotomayor will refuse to answer questions about any of the hot-button issues that the confirmation battle will focus on: constitutional questions about abortion, gay marriage, the rights of terrorist detainees, and the like. No recent nominee to the court has directly answered questions about particular issues that are likely to come before the court. While this may be frustrating to their interlocutors, nominees are prudent not to prejudge in the abstract issues they will likely have to decide in the context of specific cases.
But the nominee should answer questions about her judicial philosophy. Mr. Obama has the prerogative of nomination, but the confirmation process serves as an important check on whether a nominee's philosophy is acceptable to the American people. Even with a strongly Democratic Senate, the process should be more than a rubber stamp. The stakes are high when we give a person life tenure to decide some of the most important issues facing our country. Here are some questions for Ms. Sotomayor:
- Do you believe that judges should use "empathy" to decide cases? If so, what's the difference between empathy and judicial activism? The president has emphasized empathy as a paramount judicial quality. Polls show, however, that Americans want moderate judges who follow the law, not their hearts. Chief Justice John Roberts said in his confirmation hearings that judges should act like umpires -- calling the plays, not making them. Mr. Obama has suggested he wants a home-run hitter.
- Do you believe that interpretations of the Constitution should evolve to keep up with the times? If so, how would you decide when the Constitution needs updating? The president has said he believes that the Constitution has to change to keep up with the times, and in Ms. Sotomayor he has probably not chosen a candidate who believes in following the original meaning of the text. Nonetheless, constitutional text and original meaning should provide some constraint on the scope of interpretation. The nominee should be able to state some guidelines and limits for interpretation, including whether and how she would consider international law or the constitutional law of other nations.
- Should Supreme Court justices be bound by precedent? All justices sometimes overrule previous decisions. So when is it appropriate to do so? Of course, this is the question that senators use to probe nominees of Republican presidents to see whether they would vote to overturn Roe v. Wade. For Ms. Sotomayor the question is whether she perceives any limits on the ability of the Supreme Court to read new rights into the Constitution.
- What is the court's role when interpreting ambiguous laws? The confirmation process often focuses on constitutional questions that never get directly answered, but a great deal of law is made (and unmade) when the court interprets statutes. Statutes, not the Constitution, regulate financial markets, the environment, our workplaces, and many forms of private discrimination. So it matters how they are interpreted.
Statutes are enacted through a difficult constitutional process. They require passage by the House and Senate and the president's signature. Justice Antonin Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning. Justice Stephen Breyer has argued, to the contrary, that judges should interpret statutes pragmatically to promote good consequences. Ms. Sotomayor needs to identify where she lies on this spectrum.
- What matters most, the law or the result? Or put another way, when the law requires a result that you don't like, what do you do? This might seem like an easy question. Judges interpret the law, they don't make it. That was the view of President George W. Bush and his nominees to the high court. Mr. Obama has made it clear, however, that he thinks the law should often be about results -- that the Constitution evolves to reflect modern times and statutes may be twisted to achieve justice. Any judge worth the name recognizes that the law will sometimes lead to a result of which she personally disapproves. When this happens, the judge must implement the law, not her personal preferences.
The president and Congress are elected to focus on results, to get things done, to bring about change. They can choose to implement empathetic policies that favor the weak and pull up the disadvantaged. In our constitutional system, however, the judiciary does not simply duplicate this political process. The Senate and the American people should make sure that a nominee to the Supreme Court understands the difference.
Ms. Rao, an assistant professor at George Mason School of Law, was associate counsel and special assistant to President George W. Bush and nominations counsel to the Senate Judiciary Committee.
http://www.washingtontimes.com/news/2009/may/27/a-judge-too-far/
The Washington Times
EDITORIAL: A judge too far
Nominating Sotomayor reveals the president's true colors
Wednesday, May 27, 2009
With his nomination of Judge Sonia Sotomayor for the U.S. Supreme Court, President Obama has abandoned all pretense of being a post-partisan president. While he may like to think of himself as a thoughtful moderate soaring above the issues that divide America, his actions reveal what hides under that hopeful lining.
Presidents usually nominate judges that espouse their philosophy. So what does this nomination tell us about Mr. Obama's true colors?
Even the liberal establishment worries that Judge Sotomayor tilts too far to the left. New Republic essayist Jeffrey Rosen reports that fellow liberals who have watched or worked with her closely "expressed questions about her temperament, her judicial craftsmanship, and... [they have said] she is 'not that smart and kind of a bully on the bench.' "
A suspiciously high number of her decisions have been overruled by higher courts. Wendy Long of the Judicial Confirmation Network said that record shows "she is far more of a liberal activist than even the current liberal activist Supreme Court."
There will be much to say in days to come about Judge Sotomayor's manifest lack of appropriate judicial restraint and about other problems in her record. For now, though, three red flags beg for attention.
Speaking at Duke University Law School in 2005, Judge Sotomayor said the "Court of Appeals is where policy is made." On its face, the assertion runs counter to more than 200 years of American legal tradition holding that courts are merely meant to interpret existing law, not actively make policy choices.
Immediately realizing she was on thin ice, the judge continued: ". . . and I know this is on tape and I should never say that, because we don't 'make' law." To much laughter, and with facial and hand gestures to indicate that her next line was to be taken with humor as a useful fiction, she added: "I'm not promoting it and I'm not advocating it."
But judicial activism is no joke. It undermines the Constitution and substitutes judicial whim for democratic decision-making. Unelected judges, answerable to no one but themselves and serving for life, can all too easily become dangerous oligarchs.
Judge Sotomayor seems to think that inherent racial and sexual differences are not simply quirks of genetics, but make some better than others. Consider her 2002 speech at the University of California-Berkeley School of Law.
"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," she said. "I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."
She also accepted as potentially valid the idea that the "different perspectives" of "men and women of color" are due to "basic differences in logic in reasoning" due to "inherent physiological or cultural differences."
If a white male had said these openly racialist words in a prepared speech, his chances of reaching the U.S. Supreme Court would be gone in an instant. Instead, it seems that these outlandish remarks are what qualified Judge Sotomayor in Mr. Obama's eyes.
Judge Sotomayor seems to favor racial discrimination. Consider the case of Ricci v. DeStefano. In that controversial case, 19 white firemen were denied promotion because no blacks scored high enough on a race-neutral test to also be promoted. Judge Sotomayor ruled against the white firefighters.
If Mr. Obama wanted a judge with the right "empathy," he struck out with Judge Sotomayor. One of the white firefighters denied promotion, Frank Ricci, is dyslexic. In order to ace the promotion exam, he quit a second job, spent $1,000 for instruction materials, and spent many hours reading those books into an audio tape to help him study. For his extraordinary efforts, he finished sixth out of 77 applicants for promotion - but then was denied, simply because he is white.
Second Circuit Court of Appeals Judge Jose Cabranes, appointed by a Democratic president, complained that the ruling written by Judge Sotomayor and two other judges "contains no reference whatsoever to the constitutional claims at the core of this case."
The Supreme Court is expected to rule on Ricci v. DeStefano before the Senate votes on Judge Sotomayor's nomination. It would be an extraordinary rebuke were a current nominee to be overruled on such a controversial case by the very justices she is slated to join.
Judge Sotomayor seems to be the most radical person ever nominated for the high court. To continue to command public respect, the Senate will have to ask her some hard questions. The simplest one to ask will be the hardest one for her to answer: Given her statements against whites and males, can she be fair to all Americans?
Identity Justice
Obama's Conventional Choice
By George F. Will
Wednesday, May 27, 2009
Responding to early 19th-century rumors that they drank excessively, the Supreme Court justices decided to drink nothing on conference days -- unless it was raining. At the next conference, Chief Justice John Marshall asked Joseph Story to scan the sky for signs of rain. When Story said he saw none, Marshall said: "Our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere -- let us refresh ourselves."
Americans have argued about the court's jurisdiction forever. They should not stop, especially now that the president has nominated U.S. Appeals Court Judge Sonia Sotomayor.
The 1987 fight over President Ronald Reagan's nomination of Robert Bork interred the tradition that the Senate, in evaluating judicial nominees, would not delve deeply into the nominee's jurisprudential thinking. Bork's defeat was unjust, but the new approach to confirmations was overdue, given the court's increasingly central role in American governance.
Before Sotomayor's confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit -- the propriety of New Haven, Conn., canceling fire department promotions because there were no African Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion. A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court's dismissal of the firemen's complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved.
Stuart Taylor of the National Journal calls this "a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both." Taylor says that when "the circuit's more conservative judges got wind of the case," they sought to have it reheard by the full 2nd Circuit. They failed but successfully argued that the Supreme Court should take the case.
Taylor has also noted this from a Sotomayor speech to a Hispanic group: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Says Taylor, "Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: 'I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life' -- and had proceeded to speak of 'inherent physiological or cultural differences.' "
Her ethnicity aside, Sotomayor is a conventional choice. The court will remain composed entirely of former appellate court judges. And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity.
Democrats compounded confusion by thinking of the court as a representative institution. Such personalization of the judicial function subverts the rule of law.
In the 1978 Bakke case involving racial preferences in admissions to a California medical school, the opinion written by Justice Lewis Powell said race can be a "plus" factor for certain government-preferred minorities. But according to Powell's biographer (John Jeffries of the University of Virginia Law School), when the justices conferred on the case and Thurgood Marshall said such preferences would be needed for another century, Powell was "speechless." In 2003, affirming the constitutionality of racial preferences in university admissions, Sandra Day O'Connor, writing for the majority, said such preferences would be unnecessary in 25 years -- 19 years from now. How long does Sotomayor think they will be necessary? What are her criteria of necessity?
Perhaps Sotomayor subscribes to the Thurgood Marshall doctrine: "You do what you think is right and let the law catch up" (quoted in the Stanford Law Review, summer 1992). Does she think the figure of Justice should lift her blindfold, an emblem of impartiality, and be partial to certain categories of persons? A better jurisprudential doctrine was expressed by a certain Illinois state legislator in a 2001 radio interview: "The Constitution is a charter of negative liberties. . . . It says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf."
georgewill@washpost.com
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