My Uncommon Sense

Sonia Sotomayor- Supreme ignorance

Obama’s Supreme Court Pick, the first pick by a Democratic President in 15 years, is Sonia Sotomayor, a federal judge on the U.S. Court of Appeals for the Second Circuit. Surprise surprise, she is a liberal with little understanding of law and the Constitution. Today I form a list of grievances, if you will, giving good reason for why Sotomayor shouldn’t be seated on the Supreme Court bench.

My biggest problem with Sotomayor is that she rules from the bench, that is, she is not impartial but instead acts as a legislator does and imposes her own opinion. To give this some credence, I look to Hot Air for a direct quote from Sotomayor:

Um, all of the legal defense funds out there, um, they’re looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law, I know. Um, um — [laughter] — I know. I’m not promoting it, I’m not advocating it, and, I’m … you know. [laughter]

I’m sorry, but I thought that it was the duty of the Judiciary to interpret the law, not make it. It is true that in our common law system, the courts can make a landmark decision, thus in a sense creating law, but it is more clarifying, removing, amending or upholding current law. For example, a court cannot make a decision to add another amendment to the Constitution. They cannot lay taxes or authorize the declaration of war. Judicial review even isn’t in the Constitution, but Marbury v. Madison began the practice. When a judge “participates” by ruling from the bench, they are putting in their opinion into a decision, thus they can legally play favorites. Again, what happened to equal justice under the law?

Her neglect for law can be seen in her controversial decision of Ricci v. Destefano, a case where a white New Haven, Connecticut, firefighter was suing because after placing 1st on a promotion exam, he was denied a promotion on the grounds that the test was discriminatory against minorities. The test was checked multiple times by third parties to ensure its equanimity, and was tossed out solely because they didn’t like the outcome. By denying the firefighter who did well their promotions based solely on their race, they were effectively denied equal protection and treatment under the 14th Amendment. Sotomayor neglected all reason and law however, and ruled in favor of the defendants, thus denying the firefighters their much deserved promotions.

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.”

Not only did Sotomayor neglect the plaintiff’s main argument, she completely ignored the Constitution. I don’t want someone on the Supreme Court who doesn’t take into account the highest law of the land, rather decides what is right and wrong, just and unjust, based solely upon her “feelings”. Other reasons may include her demeanor and intelligence:

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.”

I would hope that a Supreme Court Justice would be level-headed, intelligent, and above all, fair. Sotomayor has proven herself to be none of these, rather eluding us to believe she is the exact opposite: hot-headed, of normal intelligence, and biased. She is neither concise nor does she focus on the key analytical points necessary when reviewing a case. Hot Air adds to the list:

In Knight v. C.I.R., (128 S.Ct. 782, 2008.), the Court found that, based on an erroneous interpretation of the tax code, Judge Sotomayor applied an incorrect standard.

In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, (547 U.S. 71, 2006), the Court found that Judge Sotomayor failed to apply precedent correctly in interpreting a scope of preemption provision of the Securities Litigation Uniform Standards Act.

In New York Times, Inc. v. Tasini, (533 U.S. 483, 2001), the Supreme Court affirmed the Second Circuit’s reversal of Judge Sotomayor’s district court ruling that the Copyright Act permitted electronic publishers to reproduce all articles in a periodical under a “collective works” privilege, concluding that Sotomayor erred in her interpretation of “revision of [that] collective works” privilege in the Act.

In Correctional Servs. Corp. v. Malesko, (534 U.S. 61, 2001), the Court reversed Sotomayor for allowing an inmate to sue a halfway house operator for negligence based on a Bivens claim. After the trial court dismissed the case, Judge Sotomayor reversed and reinstated the litigation. The Supreme Court reversed Judge Sotomayor’s decision, holding that the former inmate did not lack effective remedies and that he had full access to remedial mechanisms established by the Bureau of Prisons. The Court also held that the former inmate’s suit would not have advanced Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing.

Sotomayor may be fit for a lower court, but definitely not the Supreme Court of the United States. I don’t know about you, but I don’t want her deciding my rights based upon her “feelings”.

*UPDATE* White House press secretary Robert Gibbs tells me to “be exceedingly careful”.