Freedom of BLEEP

How does a judge that has favored discriminatory practices and has ruled against freedom of speech become nominated for the Supreme Court? Sixty percent of her decisions that came before the high court have been reversed. Her record merits close scrutiny, but first let’s search for a trace of logic behind Obama’s nomination. (Hint: We won’t find any.)

While introducing Sotomayor as his nominee for the Supreme Court, President Obama quoted Justice Oliver Wendell Holmes, saying “[t]he life of the law has not been logic; it has been experience.” The aphorism was taken out of context and does not support the President’s endorsement of legislating from the bench. Perhaps Obama should have considered this adage by Holmes:

“Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts.”

The views of Holmes and Sotomayor, at least with respect to the role that a judge should play, are diametrically opposed to one another. Holmes abided by the written law, and applied it accordingly no matter how repugnant he found it to be. However, Sotomayor stated in her address yesterday that she strives to “never forget the real world consequences” of her decisions. Maybe Sotomayor should have been a legislator instead.

Sotomayor has spoken at length about her pride in being Hispanic, and openly admits that this skews her decision making. “I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.” Sotomayor wrote that these attributes most definitely “affect the facts that judges choose to see.” This is a bold statement by someone who has taken an oath to uphold our Constitution - but instead decides cases based on her whims and fancies, her political ideology, and outright favoritism for certain adversarial parties. A look at her judicial record shows a dangerous and disrespectful thumbing of her nose at the rule of law.

Against Equal Rights
In her most publicized case, Ricci v. DeStefano, Sotomayor ruled against a group of white firefighters who were denied promotions after passing the qualifications exam. The first time the test was administered, none of the black firefighters passed. The city declared the results invalid and had everyone take the exam again. And again, none of the black firefighters passed so the city decided to throw out the results and not promote anyone. The firefighters sued under Title VII of the Civil Rights Act and the Equal Protection Clause, but the city argued that it was just trying to avoid being sued by minorities (interestingly, the City has not administered another test or promoted anyone in 5 years). The Second Circuit rejected the firefighter’s claims, essentially draining the Equal Protection Clause of all its meaning. Apparently, not all people are protected under the Constitution according to Sotomayor. Even fellow Clinton appointee, Judge Jose Cabranes wrote a scathing dissent, observing that “the opinion contains no reference whatsoever to the constitutional claims at the core of this case.”

Against Freedom of Speech
In August 2007, Sotomayor ruled against freedom of speech. Avery Doninger was disqualified from running for student government after she posted something on her blog that criticized the superintendent and other officials. Sotomayor declared that the student was a “foreseeable risk of substantial disruption” because she didn’t succumb to mind-control attempts made by the public school system.

Soft on Criminals
In 2006, Sotomayor ruled that convicted felons should have the right to vote. In 2003, she ruled that prisoners should be entitled to holiday feasts. In 1993, she criticized the five-year mandatory sentence for drug dealers, calling it an “abomination” that they do not deserve. In 1998, she jeopardized prison security by lifting the ban on beads that guards claimed were being used as gang symbols.

And after all of these absurd rulings, Obama has nominated Sotomayor to become a Supreme Court Justice. Wake up, America. This is your slap in the face.

Obama has announced his pick for the Supreme Court after “deep reflection and careful deliberation.” Sonia Sotomayer is set to become the first Hispanic to sit on the bench and only the third female justice, after O’Connor and Ginsburg. While diversity on the bench is a noble objective, Obama is taking a huge risk in nominating one of the most liberal activist judges on his short list.

During his announcement, Obama stated his requirements for a nominee, including a “rigorous intellect and mastery of the law” and more importantly “a recognition of the limits of the judicial role,” pointing out that judges must interpret, not create, law. Considering the latter, it is surprising that he would even consider Sotomayer in light of many damning statements she has made in connection with this principle.

Sotomayor made a huge flub by admitting that “the court of appeals is where policy is made.” After realizing that this statement could come back to bite her in her derriere, she inarticulately tried to backtrack. By now, most of you have already seen this, but just in case:

For those of you who don’t understand why this statement is such a huge deal, see the United States Constitution. There are specific powers delegated to each branch of our federal government. Article I governs the Legislative Branch, and gives Congress the power to “make all Laws.” There is nothing in the Constitution that gives the Court the power to make law or social policy when they disagree with Congress.  Similarly, the Court cannot interpret the Constitution in a way that advances their own political ideology. That is why the Founding Fathers included an amendment process in the Constitution to account for any imperfections or holes in the document. However, some justices feel that it is their job to rewrite the Constitution to their liking – and this is exactly what Sotomayor’s record indicates that she will attempt to do.

Obama continued to outline his requirements in his address, commenting that mastery of the laws and respect for judicial limits are alone insufficient – we need something more in a nominee –“experience.”  But the “experience” that he is talking about is not appellate court experience, but experience that allows a justice to “empathize” with others. Remember the comment he made during his campaign:

[W]e need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

According to Obama, justice is apparently NOT blind. This comment is in perfect alignment with the views of Sotomayor, who has previously said “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.” This statement is a slap in the face to our Founding Fathers. They envisioned the Court as a neutral arbitrator, similar to a referee in a sports game. Would you want a referee to administer the rules of the game based on which team they like more? Maybe a team hasn’t had a chance to win the Super Bowl, while their opponent has won it 7 times - so they bend the rules a little to stick it to the successful team.  Is this a fair application of the rules?  Even more important, the Court is bound by precedent, which creates a stable and predictable judicial system. However, when we allow judges to take into consideration their own prejudices and political ideology, the outcome does not reflect an even-handed application of the law and instead reflects the bias of whichever judge you happen to appear before.

Obama concluded that “I hope the Senate acts in a bipartisan manner, confirming her as swiftly as possible.” In the wake of even more swift and reckless action by Congress in passing sweeping and destructive legislation without contemplation (i.e. without even reading bills before voting), it would be a disservice to the American people to confirm a justice having life tenure on our highest court without a rigorous and searching inquiry into their judicial philosophy and fitness to be a impartial arbiter.

More on Sotomayer’s judicial record and other disconcerting information later…