PatriotPost.US; Friday Digest News From the Swamp: Obama Picks Sotomayor
When Supreme Court Justice David Souter announced his retirement earlier this month, the guessing game began as to whom President Barack Obama would pick to fill the seat. Tuesday, he answered that question with the non-surprise pick of appellate judge Sonia Sotomayor from the Second U.S. Circuit Court of Appeals. The Democrats and the media (but we repeat ourselves) immediately ran with their talking points about her "empathy" and her "compelling life story." Indeed, blogger Michelle Malkin quipped, "Drinking game: If you take a shot every time you hear the phrase 'compelling life story' today, you should be out by lunch."
It is Sotomayor's judicial philosophy, however, that is compelling us to oppose her nomination. In 2005, Sotomayor was caught on tape articulating leftist judicial activism in a nutshell: "[A] court of appeals is where policy is made." Knowing she had given away the game, though, she immediately clarified: "I know this is on tape, and I should never say that because we don't make law. I know."
In a 2001 speech at the University of California, Berkeley, later published by the Berkeley La Raza ("The Race") Law Journal, Sotomayor opined, "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."
National Journal legal analyst Stuart Taylor got it right when he responded, "Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority. 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.'"
More to the point, Sotomayor's statement reveals a judicial philosophy wrapped in identity politics. How can a judge possibly be committed to the impartial rule of law when that judge is compromised by such racist sentiment?
Sotomayor's record during her 17 years on the federal bench offers little encouragement. For example, her decision in Ricci v. DeStefano is pending an appeal before the Supreme Court and will most likely be overturned. The case involved a promotion denied to several white firefighters and one Hispanic in New Haven, Connecticut, simply because no blacks scored high enough on the promotion test. In the unanimous ruling for the city, Sotomayor showed no empathy for the white firefighters who were discriminated against. In fact, the three-judge panel from the Second Circuit didn't even bother to elaborate on the district court's opinion. That, combined with the failure of the plaintiffs to win a hearing before the entire court, drew sharp criticism from fellow Clinton-appointed Second Circuit Judge Jose Cabranes, who wrote, "[T]his Court has failed to grapple with the questions of exceptional importance raised in this appeal."
Sotomayor is also opposed to gun rights, writing in a 2004 criminal case, U.S. v. Sanchez-Villar, "[T]he right to possess a gun is clearly not a fundamental right." She also ruled in Maloney v. Cuomo that the Second Amendment does not apply to the states, and that a city or state has the right to disarm its citizens. The Ninth Circuit ruled recently that the Second Amendment does apply to the states through what is known as "incorporation" via the 14th Amendment. Maloney was appealed to the Supreme Court, which will hold hearings on 26 June.
With only 40 Senate seats, Republicans have little recourse in blocking or even slowing the nomination, and Sotomayor's confirmation seems all but guaranteed -- at least if she is paid up on her taxes. Yet, despite Obama's attempts to highjack conservative language about the rule of law, Republicans should use the opportunity to frame the debate as a contrast between the rule of law (properly understood) and the rule of men.
For more on the correct interpretation of the Constitution, see Mark Alexander's essay, "A 'Living Constitution' for a Dying Republic."