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.

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:

“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.”

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:

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.

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

Comments

[Croaker Norge]

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/sotomayor-and-the-second-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/datastore/opinions/2009/04/20/0715763.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.

[North Dallas Thirty]

Oh, that's funny.

"The last time the city offered a promotional exam, he said in a sworn statement, he gave up a second job and studied up to 13 hours a day. Mr. Ricci, who is dyslexic, paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He made flashcards, took practice tests, worked with a study group and participated in mock interviews.......

But Donald Day, a representative of the International Association of Black Professional Fire Fighters, questioned the value of the New Haven test, which included written and oral components. “An individual’s ability to answer a multiple-choice exam,” Mr. Day told the city’s Civil Service Board, “does nothing but measure their ability to read and retain.”

There are more important values, he added. “Young black and Latino kids have every right,” he said, “to see black and Latino officers on those fire trucks that are riding through their community. They have every right to look for a role model.”

http://www.nytimes.com/2009/04/10/us/10scotus.html?pagewanted=1&_r=1

OMG! How discriminatory! After all, Islamo and Sotomayer know that blacks can't read or retain information, nor do firefighters need to read or retain information. The only thing that is important is that they be of the correct skin color.

[JustOneMan]

From my experience as a volunteer firefighter the written exam focuses on fire ground tactics, leadership, chain of command, communications, etc. etc.....

An office who is a C or D student will and has caused the death of innocent heros.

Does anyone want to go to the brain surgeon who couldnt pass the written exam but is there so young black and latino kids can see unqualified tokens practicing medicine?

[Nishner]

Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ... And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position. [...]

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

So says Justice Alito

http://www.asksam.com/ebooks/releases.asp?file=Alito_Hearing.ask&dn=Day%203%20-%20Coburn%201

[Fiona]

None of this will matter, she will be the next justice no matter what. Repubs won't filibuster for 2 reasona, one of which was discussed in length today. One, they don't have the numbers. Unlike Repubs, the Dems have no dissention and they got 4 Repub votes for sure. Second, the polls. She has approval numbers higher than Roberts and Alito did at this time. General population is 54 - 24 FOR Sotomayor and the female vote (which is the highest of any Justice) is 60% FOR Sotomayor. They have to choose their battles and they can't afford to alienate women or Hispanics. Like a Republican strastegist on CNN said today "The only real question is does she get 65 or 75 votes?" He said she'll get 75 at least.

[North Dallas Thirty]

So Nishner, why do you and your fellow leftists say that Alito is a racist and bigot, but that Sotomayer isn't?

Add to that the fact that Alito said he took it into account. Sotomayer said flat out that her skin color and physiology made her a better judge than a white person.

[jp2506]

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[Nishner]

I never said any such thing about Alito.

That's not what she said. But nice try. Go ahead and smear her. You'll get a two-fer, piss off woman and latinas.

From the same speech:

"I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

[Tom]

Sotomayer if you have done good the god will definitely save you.

[North Dallas Thirty]

Go ahead and smear her. You'll get a two-fer, piss off woman and latinas.

Given that liberals like yourself smeared Sarah Palin with claims that she faked her pregnancy, I don't think that is in the least of your concerns.

The abortion-supporting racist women who want Sotomayer are going to want her regardless of how obvious she makes her racist beliefs. But I happen to think there are plenty of fair-minded women out there who are not going to applaud a racist judge who thinks that her skin color and gender make her automatically superior to people who aren't of the same of either.

And, believe it or not, there are Latinos out there who don't believe in that either. I know your party has done its best to try to harass those folks out of existence, like you do for the black conservatives that you call "oreos" and "house slaves", but there are still plenty of them.

[Reaganite Republican Resistance]

Unless one is delusional, Sotomayer is a racist- pure simple, as are all members of the treasonous La Raza -by definition- who’s motto is “For our race everything- for others, nothing”.

Her record is nothing to shout about either, and frankly -if you’ve heard her speak- she’s not what you’d call a towering intellectual.

Eric Holder has some racial hangups and agenda too, calling us “cowards” regarding racial issues and letting-off Black Panthers who stood in front of a polling place with nightsticks.

And Obama himself has shown us a puzzling pro-Kenyan grudge against the British and has said some pretty odd things, even regarding his own grandmother… plus he's the one who nominated all these kooks in the first place.

Whatever happened to the idea of a colorblind society? Team Obama define their world in racial terms all the time- and unlike any white people I know. I wouldn't want to be judged by any of them after what I’ve heard come out of their own mouths- they sound like Jesse Jackson.

If Obama is going to go on with his "justice" agenda largely based upon race- the double standards need to stop… and NOW

http://reaganiterepublicanresistance.blogspot.com/

[Nishner]

Nice screed RRR. Too bad it's all BS. And go ahead and smear Sotomayer - I'm sure woman and latinos will LOVE that.

If you're REALLY worried about a colorblind society, you might join a party that actually supports the idea and isn't becoming a Party of Old White Guys.

[North Dallas Thirty]

Tell us, Nishner; how is it exactly that you reconcile being "colorblind" with your party's habit of insisting that there be a specific number of people of each skin color and gender type in every business, government office, etc.?

[Nishner]

Tell us, WDT; why do Republicans smear any candidate they don't like?

[mark l.]

the more I read about sotomayor, the more I want her to be the one the dems appoint.
she is going to wind up being waaay closer to kennedy than she would be to souter.

[WAHOO WILLIE]

""-- 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. --"

Man, I would LUUUUUUUV to see that test just to see how the hell ANYONE even a demobigot could create a fire fire promotion test that would be biased against anyone who could read and write thier own name. No I've all sorts of experience how to get the girl through or help a brutha. But how does one ask "How much pressure do you add to a hose lay on the tenth floor to have 95 psi at the nozzle?" What's funniest is the guy who is dyslexic passed. You read "United Command" he reads untied command............
What a friggin' joke..........oh and seem if the judge was ethnocentric she wouldn't have tossed the hispanic guy who also passed the test.

[LOL]

which party is dominated by one race again?

[North Dallas Thirty]

Which party fully supports and endorses this enlightened attitude towards race?

"White and Kinney both testified Kilpatrick used the F-word in describing them while urging his security detail to get them off the porch. They said the mayor also made racial remarks about her and White.

"You're a black woman,'' Kinney quoted the mayor as telling her. ``You should be ashamed of yourself being with a man with the last name white. You should not be a part of this."

White is white. Kinney and Kilpatrick are black."

http://www.wwj.com/pages/2788316.php?

www.youtube.com/watch?v=4ZNvC_-RW2Q

I suppose we shouldn't be surprised that minorities who think they should be allowed to commit crimes with impunity and try to "shame" anyone of their skin color who doesn't go along flock to the Obama Party, which fully endorses and supports that.

[North Dallas Thirty]

Tell us, WDT; why do Republicans smear any candidate they don't like?

You mean quoting their exact words is "smearing" them?

What I don't get, Nishner, is why both you and Sotomayer agree that tests that require reading and retention of information are less important than skin color in determining who should get promotions.

And that leads us to this:

"Cause they can't build a coherent case against them. See above."

LOL...as the racist quotes her own strawman arguments to defend her fellow racist.

"She went to a premier school which makes her elitist, graduated at the top of her class which makes her super elitist, and yet she's clearly an uneducated affirmative action poster girl who is dumb as a sack of hammers."

That's easy to resolve; she got automatic points and grades given based on her skin color.

After all, Islamo, don't you and your Party support admissions and grading processes that award points on the basis of skin color?

"She's both too race sensitive and not race sensitive enough."

Notice how Islamo claims that treating white people fairly is "bias".

[WAHOO WILLIE]

"which party is dominated by one race again?"

Hmm, sadly it seems to be the one that freed the slaves (the southern demonrat president barely counts)appointed the second black justice, appointed two as Sec o' state, one as SecDef.........The one they flock to? The party of axe handles, police dogs, jim crow and the grand poobah of the KKK. Yep, tis a mystery to me too.

[Nishner]

You didn't quote her exact words or explain the context. All you do is smear.

And after asking where the idea of a colorblind society went, NDT answers his own question with this crap: "That's easy to resolve; she got automatic points and grades given based on her skin color." Does that apply to all minorites in government? Or just the ones you don't like?

Same old standard wingnut crap - anyone that's not white only got their job by squeezing out some more qualified white guy. Racist drivel. And the idiots that run the GOP wonder why it's turning into the Party of Old White Guys.

I'm cheering for ya NDT, keep spewing the racist smears, help finish off what litte humanity is left in the party of the Great Emancipator.

Geez Wahoo, you've gone wingnut.

[North Dallas Thirty]

And here's the latest from Sotomayer.

“Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.”

http://hotair.com/archives/2009/06/03/oh-my-sotomayor-made-nearly-identical-wise-latina-comment-in-1994-too/

In other words, Sotomayer does NOT agree that a wise man and wise woman would reach the same conclusion; she states flat out that she believes the woman will reach a better conclusion.

Substitute "he" and "he believes the man will reach" and you have the lefties like Nishner and Islamo in full sexist-screaming meltdown.

[WAHOO WILLIE]

" anyone that's not white only got their job by squeezing out some more qualified white guy. Racist drivel."

Actually, the worst racists are the ones who insist that these things must be done to "level the playing field" Dont teach people what a saucer is....just remove it from the test or dumb these down so those can feel better about themselves.

[WAHOO WILLIE]

I'd still love to see that racist test..........

[Nishner]

You, like your wingnut brethern, chopped off the sentence. The full sentence is:

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.

But going beyond your kneejerk interpretation would require a wingnut to actually understand irony, nuance and a bit of the history of the Supreme Court and its less than stellar history on racial matters pre-1950 when it was pretty much the exclusive property of White Guys. If you want to argue Plessy vs Ferguson or Dred Scott were the product of wise men be my guest.

[WAHOO WILLIE]

Nish you really need to change your meds or actually read a history book. Now I'm not saying her statement is racist but your argument defending it...well it's kinda, uh uninformed. Maybe you could begin googling the first woman on the court. Then try oh, anyone of tons civil liberties cases handled by the court that overturned racist laws in one form or another.

[WAHOO WILLIE]

If it's true she's a pro-lifer it will all be moot anyway.

Nish while you're googling see if you can fnd that test for me....please

[Nishner]

Here's the speech, read it and decide for yourself.

http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all

[Nishner]

http://www.scotusblog.com/wp/judge-sotomayor-and-abortion/

[mark l.]

"You didn't quote her exact words or explain the context. All you do is smear."

{Obama twisted the words of Republican John McCain, saying he has suggested "war" might "go on for another 100 years." McCain expressly said otherwise. He said a 100-year presence would be acceptable in the absence of violence against U.S. troops, and later said "the war will be over soon."}

http://www.factcheck.org/elections-2008/cleveland_clinkers.html

does that make obama smearer-in-chief?

let me guess...some smears are not the same as other smears.

[mark l.]

from jharp's link...

"Judge Sotomayor has never participated in a panel opinion, or decided a case as a district judge, involving that question."

confirm this woman.

the whole theory of "latina+female=liberal" gets blown out of the water when you see that she went to catholic school. at present, the guy who is probably vouching for her bona fides is schumer.

pro-life, pro-choice?

she might favor abortion rights, but these late term abortions, if they ever arise as a case, are going to be extremely repugnant to her. the next twenty years are going to provide states who will seek to end second trimester abortions, outside of defect/threat to mother.

I'm sure she is pro-choice, but even the dems can't tell you where she will draw the line. They should be more scared of the uncertainty that the republicans.

[Nishner]

"let me guess...some smears are not the same as other smears."

For once, you're correct. Calling someone a racist - which is a judgment on their personal character and how they treat other people - is certainly not the same as talking about a candidate's policy issues.

Oh yeah, she's still not a racist.

[North Dallas Thirty]

"But going beyond your kneejerk interpretation would require a wingnut to actually understand irony, nuance and a bit of the history of the Supreme Court and its less than stellar history on racial matters pre-1950 when it was pretty much the exclusive property of White Guys."

So your excuse for Sotomayer's racist beliefs is to go back in time over a half-century.

In that case, your Obama Party is the party of racists, as they were proving 50 years ago. They've simply changed from white racists to black and Hispanic racists like Obama and Sotomayer.

[Nishner]

NDT - call her racist all you like. It's just going to drive out what few minorities remain in the GOP.