Constitutional Opinions
Vote No on Sonia Sotomayor
She will not protect the Constitution — or even live up to Sen. Durbin’s standard.
Absent a miracle, Judge Sonia Sotomayor will take a seat on the U.S. Supreme Court. Nevertheless, the Republican minority still has an opportunity to use her nomination to educate the American people about the dangers of politicizing the judiciary.
President Barack Obama made a politically astute pick. Sonia Sotomayor is a competent jurist who symbolizes hard work, personal achievement, and ethnic diversity.
However, as Sen. Dick Durbin (D-Ill.) argued during the hearing on John Roberts, “the burden of proof for a Supreme Court justice is on the nominee.” Judge Sotomayor has not met that burden.
While talking up her background, Sotomayor’s advocates have emphasized her moderate record on the 2nd Circuit Court of Appeals. However, Circuit Court judges remain constrained by the possibility of Supreme Court review — and the hope of advancing to the high court. Judge Sotomayor’s testimony was useless, as intended, in assessing her judicial philosophy. Writing in Slate, Dahlia Lithwick concluded: Sotomayor “dodges, hedges, and evades her way through softball and hardball questions alike.” Sen. Jon Kyl (R-AZ) put it more harshly: the Judge was “evasive, lacking in substance and, in several instances, incredibly misleading.”
In trying to assess how Justice Sotomayor would behave, we should consider the president’s expectations. Then-Sen. Obama, who voted against both John Roberts and Samuel Alito, emphasized the “quality of empathy.” While most cases can be decided on the basis of case law and precedent, said Sen. Obama, there remain five percent which “can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world words, and the depth and breadth of one’s empathy.” Alas, this latter category, however few in number, accounts for most of the important issues about which we most care and which most divide us.
Sonia Sotomayor’s rhetoric and background suggests that she shares the president’s general perspective. For instance, she has been involved in ethnic identity activism and politics throughout her college and professional life. She spent 12 years as a board member of the Puerto Rican Legal Defense and Education Fund, which promoted the usual ethnic agenda of coerced diversity and multiculturalism as well as the usual liberal agenda including support for abortion and opposition to capital punishment.
Moreover, her rhetoric reflects an extreme judicial vision. Perhaps Sotomayor’s most famous comment, repeated in substance on at least seven occasions, came in the Berkeley La Raza Law Journal: “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.” Six years ago in a speech at Seton Hall she declared: “Whether born from experience or inherent physiological or cultural differences, … our gender and national origins may and will make a difference in our judging.”
She returned to this theme many times: “My experiences will affect the facts that I choose to see as a judge.” Moreover, “there is no objective stance, but only a series of perspectives — no neutrality, no escape from choice in judging.” Indeed, “our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that.”
There’s more, however. She also believes that judges are to change the law. For instance, she complained: “The public expects the law to be static and unpredictable. The law, however, is uncertain and responds to changing circumstances.” Of course, changing the law cannot be left to legislators: “Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions.”
Indeed, “A given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”
After all, she contends: “change — sometimes radical change — can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive civilized but always evolving society.” As she declared in a videotaped talk, the “Court of Appeals is where policy is made” and where “the law is percolating.”
One need not have an idealized vision of the law to find these sentiments profoundly disturbing.
Empathy has its place — perhaps in a trial judge understanding a defendant’s motivations, and passing sentence. However, empathy is a dubious guide to statutory and constitutional interpretation. Some of the most important cases either revolve around a party with whom empathy is impossible or involve multiple parties who all deserve empathy.
Diversity has value, but Sotomayor did not argue diversity would improve collective decision-making. She said that her ethnicity and gender would improve her decision-making.
Moreover, stereotypes can be seriously misleading. Nine white men delivered the death blow to racial segregation in Brown v. Board of Education. One of the New Haven firefighters who challenged the city’s “pro-minority” employment policy in Ricci v. Destefano was Hispanic Ben Vargas.
About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).
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Steve| 7.30.09 @ 7:50AM
People of America you can thank the people of South Carolina for this. They elected Lindsey (milquetoast) Graham to the Senate which caused this to happen. By voting for her on the committee, the Democrats only need 50 to seat her. If he had not voted for her, they would have need 60. They didn't have the votes with the number of Dem.'s who would have been in trouble back home during the next election in 2010. From the rest of America a big thanks goes out to South Carolina.
Steve| 7.30.09 @ 7:54AM
Besides he is counting on McLame making him his VP when McLame is put up by the Repub's in 2010 for the president nomination.
Steve| 7.30.09 @ 7:59AM
sorry 2012.
Eric Damon| 7.30.09 @ 8:26AM
Steve,
McCain in 2012? What are you smoking dude? When was the last time that a major political party ran the same candidate in successive presidential elections? It simply doesn't happen, since people generally are not going to vote for anyone seen as a loser in an election. Besides which, even the GOP understands that McCain and Graham are very unpopular with the base of the Party and would have no chance on any national ticket.
As for whose fault this all is, the blame lies with the American people. A majority of us voted in Obama, knowing what he was likely to do as president...govern from the left. And when he started to govern from the left, you knew he was going to put up liberal nominees to his Cabinet and the SCOTUS when the opportunity came. Graham is a squish, that is not in dispute; but Sotomayor was not going to be stopped even with every GOP member voting against her. A 60 vote majority is a 60 vote majority, and even a strict party line vote could not stop the Sotomayor nomination.
Pingback| 7.30.09 @ 8:29AM
Doug Bandow » Blog Archive » Why the Senate Should Vote No on Sonia Sotomayor links to this page. Here’s an excerpt:
Robert Rosencrans| 7.30.09 @ 9:35AM
I must take exception with one claim in this article. The article claims that Obama made an astute choice here because Sotomayor represents amongst other alleged qualities, ethnic diversity.
In fact that isn't true. Ethnic diversity isn't forced, it occurs naturally.
Since even Sotomayor acknowledges shes is a Frankenstein's bride due to affirmative action, the claim of ethnic diversity is false.
It what passes for ethnic diversity forced by government edict. That isn't diversity. It's a racial dictatorship.
Steve| 7.30.09 @ 9:58AM
Eric I was being facetious. Everyone knew McCain was a loser from the start, but the Repub.'s backed him anyways.
Steve| 7.30.09 @ 10:12AM
Eric, not everyone voted for the guy from Illinois. Also sorry to say you are wrong. If Lindsey (milquetoast) Graham had not voted for her on the committee, she would have needed all 60 votes of the Dem. s to put her on the court. Now they only need 50. Even with Graham and the other 4 milquetoasts who are going to voted in the senate it would have been close. There 9 or 10 Dem. s from conservative states that would have had trouble voting for her. Now she is in thanks to the John McCain's shadow. The reason the vote in committee was postponed a week was the Dem. s needed the time to talk Lindsey (milquetoast) Graham and promise him something to vote for her. That's how it works in Washington.
Michael Tomlinson| 7.30.09 @ 10:17AM
"President Barack Obama made a politically astute pick. Sonia Sotomayor is a competent jurist who symbolizes hard work, personal achievement, and ethnic diversity" -- Democrat propaganda. It is my understanding that her decisions are routinely overturned (up to 60% of the time) so her level of competency is debatable, she was given a pass in law school where rumor has it she read Dr. Seuss to brush up on her English and her personal story is no more compelling than millions of Americans like Clarence Thomas or Miguel Estrada. Senator Kyl’s assessment was bang on target.
As a jurist she is mediocre and as a person she is an obnoxious racist fraud. She has two things going for her she is a woman and Hispanic nothing else is that notable. As for “quality and empathy” she has neither unless sophomoric judicial decisions and bigotry rank as “quality and empathy” in the Obamanation. If Republicans were the Senate majority this racist wouldn't have stood a chance with or without Graham.
Still this is why elections matter and those calling for conservatives to punish Republicans in 2006 or "throwing away an election or two" was smart politics were wrong. Politics is civil war without bloodshed and in the battle for Souter's seat Obama has won. Thankfully, we'll see the majority of Republicans vote NO!
ROBERT WEELS| 7.30.09 @ 10:19AM
Now let me be clear, don't bet on this not happening, number 1....she's in.
number 2....she's in
number 3....she's in
now are ALL you "little sheeple" paying attention.
Now bring me the next problem I can shove under the carpet, signed, the Omnipotent One.
Al Adab| 7.30.09 @ 11:27AM
She will be confirmed, to our everlasting shame. While qualified by education and experience (if we overlook that 60% reversal rate) she is unqualified by her views of Law and Precedent. Of course one might say she purjured herself during the hearings when talking about her views of Law since previous statements contradict what she testified to. That is actually a jury instruction in many cases.
Would that the Conservatives and whatever Constitutional Democrats still exist will find the huevos to stand for the Constitution and against "results oriented" Justice.
All too many of our Senators remain foresworn aqs their oath requires them to defend the Constitution not rewrite it. Laws can be changed through legislation, not from any Judicial bench.
Mattled| 7.30.09 @ 12:14PM
The wise Lie-tina makes it through.
Thanks Lindsey. BTW---you look like you're needing more make-up than usual lately.
William| 7.30.09 @ 12:29PM
"Graham is a squish, that is not in dispute; but Sotomayor was not going to be stopped even with every GOP member voting against her. A 60 vote majority is a 60 vote majority, and even a strict party line vote could not stop the Sotomayor nomination. "
Agreed Eric, but it is important that the onus of these hideous policies and selections be put squarely and solely on the Democrats if the GOP is to recover and survive.
Franky, I think that in the GOP what we see is what we get and will continue to get. I think the GOP is dead as a vehicle for freedom or even as a viable 'loyal opposition' Menshevik party.
dcd| 7.30.09 @ 3:48PM
Yes! bring on the judicial filibuster. How many arguments can you come up with to justify blocking a qualified though disagreeable candidate? Hint: look at the democrats' notes from the last go round.
pete| 7.30.09 @ 4:04PM
dcd would be dead-on there. The left is quite famous for blocking hundreds of perfectly qualified judicial nominees. And yet they have the balls to point a finger. If those of us with brains exile the leftist brainless ones, we just might at some point have a country again. Personally I care not which of them I offend for their stupidity has already offended.
bluecollarbytes| 7.30.09 @ 6:55PM
The fact that Soto is likely to be an Activist Political Judge is more than enough to publicly oppose her. The Republican vote on her nomination will provide an indicator as to the relative Health of the Republican Party. Sen. Grahamnesty is but one indication that some are infected and need to be removed before it spreads.
Eric Damon| 7.30.09 @ 7:15PM
Re: Steve
My fault on answering a facetious comment, but I had seen a similar one on another thread, so... Anyway, you may be right about Graham's vote lowering the Sotomayor confirmation bar, but the fact remains that no Democrat in the Senate was going to vote against her confirmation...even those from more conservative states. And there would also have been many a Republican who voted in her favor as a nod to long held senatorial tradition; the President is usually going to get the nominee that he wants. Making it tough for her out of committee would not have derailed her, but the GOP senators should have used the hearings to show the entire country just how bad her selection was. They couldn't even do that, so how were they going to derail her nomination?
Eric Damon| 7.30.09 @ 7:20PM
Re: William
Unfortunately, what we see is what we get from the GOP and what we are getting are people who want to be liked, instead of be leaders! Leadership is not a popularity contest, especially with your opposing camp, but that is what the GOP 'leaders' try to make it. They spend too much time trying to keep on the good side of the NYT editorial board, so they are willing to sell out principles to get there...even though they will never be respected or popular on the left! The only way the GOP is going to stand for freedom and liberty again is to see a revolution from within that moves the Party back to its original moorings, instead of being tossed on the waves of political expediency.
Ronald Alan Reeves| 7.31.09 @ 1:35AM
Republicans believe in the right of a U.S. President to appoint to the Supreme Court.
Justice Ginsberg received 99 favorable votes; however, Justice John Roberts received (from memory) 59?!?!?!?!?
Ginsberg was an ACLU lawyer, known for her beliefs and Sen. Durbin and the like grill Roberts?
Sen. Graham is a Southern Gentleman, no doubt. He needs to be more like his conservative constituency in The Palmetto State.
Someone give the "wise Latina woman" a very well translated Spanish version of The U.S. Constitution. Maybe she'll feel inspired.
Do you remember what the Democrats did to Miguel Estrada? Can it be that it wasn't about poor Estrada? He was possibly collateral damage because a REPUBLICAN can't appoint the first Hispanic to a high court position.
So here we are. Don't "Bork" Sotomayor.
Let's "Estrada" her !!!!!
Louis Jenkins| 7.31.09 @ 9:55AM
Last time I posted on Lindsey Grahamnesty it was deleted, and I did not use four letter words either. Grahamn illustrates what is wrong with the Conservative movement. "I don't like you but I'm going to vote for you," to paraphrase his comment. Attitudes like this will allow legislation from the bench to exist, and this judge has shown she is not afraid to do just that. Until the peceived leaders of the Republican party begin to grow some intestinal fortitude the Democrats will continue to run amuk with every opportunity that is presented, and worse, Conservatives will leave the Republican Party in droves. (When they mail requests for $ support, let your checkbook remain closed!) It is hard hard to believe that Mr. Graham represented the folks back home in SC with such an attitude.
Republican NAZIS out of favour| 7.31.09 @ 10:38AM
People must do what is right for them. Too many people are influenced into the wrong things.
If it was some Nazi person being put forward the Republican Party would have supported it.
This is the reason people are leaving the Republican Party in its thousand per day. People have enough problems trying to survive without you bunch of racist fools.
Marc Jeric| 7.31.09 @ 12:02PM
It is a sad spectacle to see that pig-faced far-left racist with lipstick get to the Supreme Court. And a typical product of affirmative action - stupid but so full of self-esteem. Republicans want to be gentlemen - a mortal mistake when you are dealing with murderous criminals. It pains me to think of the Julius Caesar-like smirk on Abu Hussein's face at her "inauguration".
Memorial| 7.31.09 @ 12:27PM
"As Bill Buckley once said to Gore Vidal, "If you call me a NAZI again you... I'll punch you in the nose."
When all you have is namecalling (NAZI, racist) then your argument is vacuous. The lady is simpl;y not qualified by virtue of her disrespect for the Law not her lack of something else.
BTW,
NAZI meant national socialist. Hardly a conservative name.
Robert M Sousa| 7.31.09 @ 3:46PM
I personly think think she & president obama are racist & they will only use the contitution to help with there liberal agenda.
Bruce | 7.31.09 @ 3:56PM
Eric - the only problem I have with your quote "They spend too much time trying to keep on the good side of the NYT editorial board, so they are willing to sell out principles to get there" is this ... in order to SELL OUT principles, one must first HAVE them to sell out. The GOP as I see has none. which is why I changed my re4gistration 6 years ago when I saw the way the party was going to just another "big government Democrats" witha different name.
As for Mr. Jenkins melodrama ... Mis Graham is not and never was a "conservative, any more than his butt buddy McCain is. Ergo - your quote "Graham illustrates what is wrong with the Conservative movement" is a nonsequitur.
Wake up and live| 7.31.09 @ 4:05PM
Robert M Sousa| 7.31.09 @ 3:46PM
I personly think think she & president obama are racist & they will only use the contitution to help with there liberal agenda.
__________________________________
These people are not RACIST it's the system that is racist.
One, how many laws has Obama changed since being in office none.
Bush Changed more laws than any former president. Wire tap, people rights, the right of the Gov to call out foreign troops to kill American citizens, nothing to do with Obama all to do with George W Bush.
Bruce | 8.1.09 @ 12:49PM
Sousa - I don't know what you're been smoking or drinking - but I'd like to know. If you extracted your head from your butt for a few minutes you MIGHT be able to think more clearly.
Where the HELL do you come up with nonsense like "the right of the Gov to call out foreign troops to kill American citizens"? Are you insane?
Bush changed no laws - the Constitution prohibits that. I would suggest you read more closely the requirements of the Patriot Act (which Obama your savior has left in place, btw) in regards to wire-tapping, etc. If you are indeed capable of rational thought you will find that Constitutional requirements for all have not changed one bit. The FISA permits tapping lines ONLY in cases where their is direct evidence of a person (citizen/traitor or otherwise) being in contact with another known to have ties to terrorist organizations. Do you see something wrong with that?
Bruce | 8.1.09 @ 12:52PM
Hey webmaster ... culd you guys PLEASE incorporate an anti-spam feature - like Captcha - to the site to prevent this garbage from spammers like those above? Thank you!
Pingback| 8.1.09 @ 11:40PM
Me Disputing Several Opinions of One of My Betters. And a Transcript of the Speech in links to this page. Here’s an excerpt:
Bruce | 8.2.09 @ 11:28AM
Messrs Tomlinson and Damon ... +2
Janet Menendez| 8.3.09 @ 9:39PM
I feel out country is being taken over from with in, Mexico is sending them here by the millions and our our government is giving them OUR country, this Latino friendly is getting out of hand, now the government is getting more and more Latinos in government offices and like this
Sonia Sotomayor she is a member of La raza the group funding the illegals and getting them to fight in our country for rights they have NO right to, I came here legally and find this invasion a slap in the face to all who come here legally.
They get SSI for the bogus American children and low housing and jobs, before a American this is wrong, we need to do like we did in 1953 and send them all back , we did this 2 times before, only now our government is on there supporting team and put us last on the list, but they are giving our money to them, what is wrong with this picture and Sonia Sotomayor is going to be a BIG PART of this, like I said she is in La raza group and supports them,