President Obama’s pick to fill the vacancy left by David Souter’s departure, Sonia Sotomayor, speaks volumes about our new president and resoundingly justifies the concerns of those of us who voted against him in the 2008 election. Mr. Obama, allegedly once a professor of constitutional law, has come down solidly on the side of judges who use their position not to arbitrate the law but to advance a statist social agenda: judicial activists so properly labeled as tyrannical Men In Black by author Mark Levin.
There are a number of things that come up whenever any president nominates a justice for the US Supreme Court, Roe v. Wade being the most consistently and tediously mentioned example. However, while Ms. Sotomayor undoubtedly holds a host of nutty positions, John McCain warned us: elections have consequences and one consequence of you idiots electing the empty-suit community organizer is that he gets to pick left wing statist lunatics to fill judicial vacancies. Not only did the discussion about the feasibility of putting left wing ideologues on the court end on election night but history shows that it is pointless to talk about specific cases for a Democratic nominee, only Republican nominees get that treatment. The public discussion that we need to have revolves around the following critical questions:
- Does Ms. Sotomayor have the intellectual power and reasonable temperament to sit on our nation’s highest court?
- What are Ms. Sotomayer’s views on the proper role of the judiciary in America? More specifically, should she judge the law against the Constitution or should she simply strive to achieve the desired ideological results?
- Does Ms. Sotomayer really believe that a judge’s gender or ethnicity should come into play when interpreting the US Constitution? Does she hold ethnic and racial biases that would cloud her judgment?
Intellect and Temperament
A Supreme Court justice needs to be highly intelligent and must be a good listener and a thoughtful questioner. There is compelling evidence that Sonia Sotomayor does not possess these attributes.
In an article in The New Republic written three weeks before Obama made his choice, Jeffrey Rosen shares some feedback from those who worked with Ms Sotomayor:
But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
Think about that for a moment: people who supported our Community Organizer President expressed reservations about Judge Sotomayer being sharp enough to go up against an intellect like that of Antonin Scalia. If I were liberal I would have reservations about this choice based solely on the fact that Sonia Sotomayor strikes me, and some people who have worked with her, as somewhat of a dim bulb. The New Republic article continues:
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?“) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.
So Mr. Obama’s nominee is not only marginally intelligent, but “kind of a bully on the bench”. I submit that her temperament is not suited for a seat on the nation’s highest court and that she is of average intelligence at best. She genuinely strikes me as one of those rude broads from a crowded northeastern city who got where she is by being obnoxious and pushy.
The proper role of the Judicial Branch
There has been a simmering debate for a long time about the proper role of judges in our system. One camp believes, and frankly both the law and common sense are on their side, that judges should judge the case with respect to the law and the Constitution and consequently will sometimes produce results that the judge does not find ideologically pleasing. There is another camp that says that everything is up for grabs; this is the Living Document crowd. They believe that results are what matter and that a judge can (and should) use any means to arrive at the proper ideological end. I submit to the reader that they are essentially unelected tyrants at that point. This is a legitimate debate that needs to be publicly discussed but outside of hard-core conservative/libertarian groups it gets no mention.
As an example, let’s look at the oft-mentioned case of Roe v. Wade. Put aside for a moment your own views on abortion. Let’s assume that the Court was going to hold the Texas abortion law unconstitutional. What they should have done was just invalidate it, essentially sending it back to Texas to let them try again. Instead, what Justice Blackmun did was write law. This whole framework of what can be done in a given “trimester” was not written by any elected body but was instead the result of a tyrant in a black robe corruptly crossing over into the constitutional territory of the legislative branch to codify his own ideology. Additionally, I have always wondered why that nebulous “right to privacy” conjured up by the majority in that decision only applies to abortion. As one more example of accepting outcomes that you do not like: I am highly offended by flag burning and stand a good chance of assaulting someone doing it, but I feel that it is indeed Constitutionally-protected free speech.
Let’s step back for one moment. The founding fathers, very well educated with respect to historical attempts at free self-government, clearly wanted to craft an American system that would be self-checking. Under our remarkable constitution, there are three branches defined, each of which plays a key role and has its own constitutional “turf”. The legislative branch, shrewdly further broken into two [once] competing houses, crafts the laws that apply to the entire United States. The executive branch pretty much controls the military, can propose treaties to the Senate, and signs or vetoes legislation passed by the legislative branch. That leaves us with the judicial branch, the incredibly important branch that should be the ultimate check on unconstitutional government. Their job is to examine a given law, compare it to the US Constitution, and make a decision based upon law. The judge’s own ideological views should have absolutely no bearing on the outcome of the case. As an example, a judge who does not personally care for firearms should be able to look beyond that and accept that the second amendment protects an individual’s right to keep and bear arms as was recently decided in the Heller/D.C. case.
So we have essentially two camps: the ones who read and follow the US Constitution and those who do not feel constrained by anything in the decisions that they make. Let’s call them the Originalists and the Activists respectively. The question here is which group Ms. Sotomayer falls into, and I think that her track record and her public statements paint a very clear picture of where she stands: she is an unabashed Activist. I submit that judges who throw aside the constraints of the US Constitution and instead substitute their own ideology are dangerous tyrants who should never be allowed on the nation’s highest court. They are wholly unqualified to sit on the bench regardless of how they would decide specific cases like [the extra-constitutional] Roe v. Wade.
Watch this video. Sotomayor’s own words indict her in ways that her opponents never could:
“Court of Appeals is where policy is made. And I know this is on tape and I should never say that, because we do not make law, I know…” — Judge Sonia Sotomayor
With that line Judge Sotomayer revealed herself as a one who sees her role as a judge as a way to implement social policy rather than judiciously arbitrating the law. More importantly, if you watch the video you can see that she waves her hands in the air like air quotes when she says “we do not make law”, mocking the very notion that she and the rest of her “annointed” (Hat tip: Thomas Sowell) brethren should be prevented from making law from the bench. Ironically, leftists who were in a rage about abuses by the previous administration have no qualms with a judicial tyrant like this, as long as she matches their hard-left ideology. Notice how her intellectual soulmates sitting to her left smile at her when she espouses judicial activism.
Ethnic, Gender, and Racial Bias
In 2001, Judge Sonia Sotomayor, a top Supreme Court prospect, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”
That’s the first line of a New York Times piece on President Obama’s pick to replace Justice David Souter. I do not have a login with that pathetically biased Newsletter for the Social Democrats, so that is the only line that I can read, but oddly enough that is enough to make my point. Judge Sotomayor openly admits that her Hispanic roots and her gender will affect how she interprets the Constitution. That is simply unbelievable to me. Another one that is going to haunt her and would clearly devastate the chances of any Republican who made a similar statement:
“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.” — Judge Sonia Sotomayor
Contrary to the President’s statement that we need a justice with “empathy”, the Constitution applies equally to everyone and decisions should be made completely independent of the race or gender or ethnicity of the parties involved. Her assertion that her ethnicity and gender would influence her decisions is enough to disqualify her immediately; she is categorically unqualified. Imagine for a moment a white conservative nominee saying that his growing up white would make him reach better conclusions than a minority justice.
The truth is that Ms Sotomayor is not just talking big, she walks the walk. In the controversial case involving the New Haven Fire Department she was clearly blinded by her empathy for the black firefighters whose poor test results ended up having the department throw out the results of a promotion test. George Will describes the case:
In 2003, the city gave promotion exams — prepared by a firm specializing in employment tests, and approved, as federal law requires, by independent experts — to 118 candidates, 27 of them black. None of the blacks did well enough to qualify for the 15 immediately available promotions. After a rabble-rousing minister with close ties to the mayor disrupted meetings and warned of dire political consequences if the city promoted persons from the list generated by the exams, the city said: No one will be promoted.
And from Jeffery Rosen’s TNR article:
The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)
I can also tell simply by watching her talk that she is not the sharpest nail in the bucket. She could never have made it to where she is judicially if she were a conservative; not because of her ethnicity but because of her shallow intellect.
Independent of her positions on a single case or potential case, Sonia Sotomayer is not even qualified to serve in her current capacity; she is certainly not qualified to sit on the SCOTUS.