Tuesday, June 02, 2009
The Case Against Sotomayor
In email, a well reasoned letter from Wendy Long of The Judicial Confirmation Network making the case against Sotomayor. Also available here.
http://judicialnetwork.com/
June 2, 2009
Dear Senator:
Over the next several weeks, Judge Sonia Sotomayor will be making her courtesy visits to you and your colleagues. At the same time, the Judiciary Committee will be entering into the phase of the confirmation process where her body of judicial decisions and written opinions begin to be evaluated. Based on what the White House has said, it is a voluminous appellate record--participation in over 3,000 panels and nearly 400 written opinions.
How is a Senator to put such an extensive record into proper context in deciding whether to support or oppose the nominee? And, more immediately, how can these upcoming courtesy visits be used productively to begin to assess the Judge's record?
Then-Senator Barack Obama provided some insight into how one might approach this process when he articulated his standard for voting against Chief Justice John Roberts for the U.S. Supreme Court:
Quote:
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“The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95% of the cases -- what matters on the Supreme Court is those 5% of cases that are truly difficult.”
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It follows that, in evaluating Judge Sotomayor, President Obama considered her nomination with a view toward those few really significant matters that the Supreme Court decides. And this naturally means that, in scrutinizing Judge Sotomayor’s existing judicial record, attention should be paid to the very small category of cases “that are truly difficult.”
Senators should begin, of course, by familiarizing themselves with Judge Sotomayor’s judicial philosophy, which is contained in the full text of two of Judge Sotomayor’s law review publications. In A Latina Judge’s Voice, 13 Berkeley La Raza L.J. 87 (2002), Judge Sotomayor embraces the view that “Our experiences as women and people of color affect our decisions” and explicitly disagrees with Justice O’Connor’s assessment that a wise old man and a wise old woman would reach the same conclusion. According to Judge Sotomayor, “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 while male who hasn’t lived that life.” In Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996), Judge Sotomayor challenges the belief that the law needs to be knowable and predictable, borrowing from the early 20th century Legal Realists who rejected the idea that judging involves the impartial application of neutral principles.
The White House is actively trying to dismiss this body of extra-judicial writing, suggesting that the few quotes receiving the most publicity are isolated, off-hand remarks. But a full reading of her articles indicates that the most controversial of the quotes are not the product of inadvertence, but represent a carefully crafted view of the courts as engines of social and political change – in short, wrought out of a devotion to judicial activism.
Senators should also soon familiarize themselves with the small percentage of cases addressed by Judge Sotomayor over the years that President Obama likely would characterize as “truly difficult.” For example:
Quote:
In Ricci v. DeStefano, the well publicized case that will soon be decided by the U.S. Supreme Court, Sotomayor sided with a city that used racially discriminatory practices to deny promotions to firefighters. The per curiam opinion Sotomayor joined went so far out of its way to bury the firefighters’ important claims of unfair treatment that her colleague, Judge Jose Cabranes, a Clinton appointee, chastised her, stating that the “perfunctory disposition rests uneasily with the weighty issues presented by this appeal."
In Hayden v. Pataki convicted felons sued the state of New York alleging that it violated the Voting Rights Act for New York law to deny them the right to vote. Judge Cabranes wrote a majority opinion upholding New York’s law on the basis that the Voting Rights Act did not encompass such felon disenfranchisement laws. Judge Sotomayor dissented, arguing that the case should have been a clear win for the felons.
In Didden v. Village of Port Chester, Judge Sotomayor sided with a local government that condemned private property for “public use” in what legal scholar Richard Epstein called “about as naked an abuse of government power as could be imagined.” As in Ricci, Judge Sotomayor decided the case in a very short opinion barely analyzing the important Constitutional claims concerning the taking of private property.
In Dabit v. Merrill Lynch, Sotomayor ignored the clear intent of Congress in passing securities litigation reform, which was designed to preempt abusive state law claims of securities fraud that trial lawyers had been filing with alarming frequency. The Supreme Court reversed her unanimously, enforcing Congress’s clear purpose to preempt such claims and forum shopping.
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The Senate must review Judge Sotomayor's whole body of work--for skill, attention to precedent and the fact findings of the trial judge below, commitment to the basic rules of procedure, and adherence to the written law. But, as President Obama has suggested, Senators should avoid falling into the trap of thinking that a jurist respects and follows the Rule of Law simply because a large number of cases at the Court of Appeals level presented no serious questions or involved consensus amongst ideologically different judges. It is, rather, Judge Sotomayor’s approach to those “cases that are truly difficult” that Senators should most carefully consider.
In closing, please accept our thanks and appreciation for the way in which you and your colleagues have opened this process. Members of the Republican Conference have eschewed a Ted Kennedy-style “Robert Bork’s America” diatribe, but, at the same time, have made clear that the nominee will undergo the utmost scrutiny and that the Conference will undertake whatever steps necessary to ensure a thorough process rather than a forced rush to judgment.
Respectfully,
Wendy E. Long
Counsel
http://www.riehlworldview.com/carniv...sotomayor.html
I would add to the list of particulars her interesting views on the Second Amendment, that it applied only to the federal government and not to the state or local governments. I would like some Senator to ask which of the other nine amendments do not apply to state and local governments, and why the Second Amendment is different.
http://www.scotusblog.com/wp/sotomay...ond-amendment/
Even the Ninth Circuit climbed down from the gun control hobby horse and recognized that Heller applied to all governments. While they did not uphold the right to have a gun show, they acknowledged without reservation that Heller applied to all citizens everywhere, reversing themselves on all previous gun control rulings. What is Sotomayor's response to the Ninth Circuit ruling? The Second's ruling on Maloney v. Cuomo was made in January, 2009, some seven months AFTER Heller. So why is Sotomayor unable to see what the Ninth Circuit saw with singular clarity?
http://www.ca9.uscourts.gov/datastor...20/0715763.pdf
The Fourteenth Amendment is pretty clear that all national rights apply at the state and local level: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;..."
So let her explain why she decided that the Fourteenth Amendment include all rights except for the Second Amendment.