Sotomayor should not be confirmed

As anyone who’s read HoodaThunk? for longer than a year or so knows I’m a firm believer that the US Senate should be required to give an up-or-down to Presidential judicial nominees. The notion that a nominee can be left to dangle in the wind either by never getting out of committee or by being filibustered in the Senate is not, I firmly believe, what the Founders had in mind when they called upon the Senate to exercise “advice and consent” on the matter. In the last couple of years our Democrat colleagues have held forth at length, however, that either approach should be perfectly permissible and conjured images of dire destruction of the country should the ability be called in question or, worse, removed.

You may also thank the Democrats for the current practice of hauling in judicial nominees to be grilled publicly over their political ideologies. Yes, they’re the ones who did it first and, up to now, most recently. (See Bork, Roberts, Alito… for starters.)

I feel that the matter of Supreme Court nominations and confirmations should be given the most serious of considerations because the ramifications of putting someone in a Justice’s robes are critical, extremely long-lived, and nigh to impossible to correct should a mistake be made. Politics alone should not, I contend, be a deciding factor. We all have our politics and perspectives and a judge is no different. What makes the crucial difference between someone who looks to be a judge and someone who looks to be , say, a network engineer is whether that person has displayed 1) the ability to separate his or her politics from the process of rendering judgment in cases brought before them and 2) whether that person has demonstrated a level of credibility and – dare I say it? – honesty that’s higher than the average Joe or Jane. In the recent past, Judge Sotomayor has demonstrated that she does not possess these qualities.

In the matter of Ricci (a.k.a. the New Haven, CT firefighters case) Sotomayor claimed that she was merely following precedent in ruling as she did. If that’s true, then why did she fail to cite those precedents in her ruling? The obvious reason is that there are precious few precedents to be had, something the Supreme Court noted in its ruling overturning Sotomayor’s decision. Where virtually all of the Justices said you need to have strong or ample evidence of a real racial impact to rule as Sotomayor had done, she herself basically said New Haven needed no evidence at all, merely the fear that such an impact may occur. The Supreme Court flatly rejected such reasoning and explicitly stated that there were “few, if any, precedents in the courts” on the matter. Sotomayor knows full well what she wrote in her decision and she knows that she cited no precedents. She’s lying.

In her decision in Maloney v. Cuomo she again states that she’s relying on Supreme Court precedent to make her ruling. What she’s doing, however, is relying on a 19th-Century case and ignoring all of the 20th-Century work that renders that case obsolete. From an article by Damon Root at Reason.com:

While it’s true that Heller didn’t answer the question of Second Amendment incorporation, the decision was far from silent on the matter. In footnote 23 of his majority opinion, Justice Antonin Scalia observed that while Cruikshank stated that the Second Amendment did not apply against the states, “Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.”

As I’ve previously argued, this is a very potent statement. Consider that the Court has been protecting First Amendment rights from state and local abuse since 1925’s Gitlow v. New York, making Cruikshank a dead letter when it comes to free speech (as Heller clearly notes). So why should Cruikshank still matter for gun rights? That’s the conclusion the 9th Circuit correctly reached earlier this year in Nordyke v. King, where it used “the sort of Fourteenth Amendment inquiry required by our later cases” and correctly applied the 2nd Amendment against California. Perhaps somebody on the Judiciary Committee will ask Sotomayor whether she thinks Cruikshank is still good precedent for free speech cases, and if not, why gun rights deserve any less constitutional respect. I’d also like to hear why she thinks Maloney got it right but Nordyke got it wrong.

Emphasis mine. This is a critical question and one that Sotomayor just got asked today in the Senate hearing. When Senator Hatch asked her about the difference between the 2 cases – specifically Cruikshank’s reliance on the privileges and or immunities clause versus the due process clause in the 20th century’s 14th Amendment casework – Sotomayor’s response was that she did not recall the cases well enough to address the difference.

She relied on the one to make a highly visible and critical ruling and cannot possibly have missed the cases dealing with the 14th Amendment in her tenure and she doesn’t recall them well enough to address them? And this is someone we’re supposed to consider for a lifetime slot in the highest court in this nation? Either she’s lying to avoid the question, which goes to the credibility matter, or she’s simply ignorant of critical matters of law, which goes to the competency matter. Either way…

Then there’s the whole “wise Latina woman” comment. The “out-of-context” argument seems to spontaneously erupt whenever a member of the Left is held accountable for their words so let’s be sure to include the context. However, it’s not the actual comment or even the context in which it was offered that I’m addressing here. It’s the matter of Sotomayor’s honesty that’s at stake here and it’s in dire straights from the Judge’s own words. In today’s Senate hearings Senator Leahy attempted to toss a couple of softballs at the Judge to allow her to address this matter when framed by a friendly question. Courtesy of Power Line’s John Hinderaker:

Pat Leahy opened the questioning of Judge Sonia Sotomayor by asking her some softball questions about her controversial speeches and decisions. In response, Sotomayor’s characterization of her “wise Latina” speech was strikingly disingenuous:

“I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.

What — the words that I use, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.

Hinderaker points out that Sotomayor is attempting a “rhetorical dodge” by laying out what Justice O’Connor had to say and then saying she was just trying to agree. He say, “That statement is a falsehood.” Now, Hinderaker is a lawyer and he has to be careful about what he writes about a judge. I’m not. I don’t. That’s not a “false statement,” it’s a blatant, through-her-teeth lie. Here’s where we’re going to go to the whole statement from Sotomayor and you’ll see that putting it in context only makes it worse. From Sotmayor’s speech:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than m
y colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice 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. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, 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.

Emphasis mine, again. As you can plainly see, Sotomayor quoted Justice O’Connor to disagree with her statement, not agree with it. Sotomayor knows what she said and she just explicitly stated that she said the opposite. She’s a liar and she’s doing it to advance herself politically. Were she a Republican – or a white male – the howling from Daily Kos, the Democratic Underground, Move On, and The Huffington Post would be loud enough to be putting cracks in the pavement. Set aside the obvious racial/gender bias she’s put on display and take note that she’s engaging in bald-face lies to the Senate in an effort to land a seat on the Supreme Court.

She is unfit for such an office and she should not have her actions rewarded. The Senate should vote her down and the Democrats no less than the Republicans. Surely President Obama can bring forth another candidate – feel free to make it a female Latina if you like – that has the competency, honesty, and professionalism that warrant a seat on the Court. Surely such a person exists. We do not have to settle for a liar whose grasp of the law appears dubious at best.

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2 comments

  1. […] in the hearings and that such a person should not be ensconced in a position of such power. I wrote about my reasons for feeling this way before and no one has provided a single shred of justified argumentation to […]

  2. […] in the hearings and that such a person should not be ensconced in a position of such power. I wrote about my reasons for feeling this way before and no one has provided a single shred of justified argumentation to […]

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