Saturday, May 30, 2009

Sotomayor is the wrong choice for the Supreme Court and Republicans should step up

Iran’s Ahmadinejad often speaks about the destruction of Israel and of the Jews, but if Obama spokesman Robert Gibbs were spinning for the Iranian crazy man he might say Ahmadinejad just used “a poor choice of words.” Having given that explanation, we should all be content and no longer criticize him. Or, perhaps Gibbs would follow that up with a threat like "I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they've decided to describe different aspects of this impending confirmation," – but substitute “Ahmadinejad” for “this impending confirmation.” The point is that when someone favored by President Obama is shown to be off the wall, we are all to ignore that condition and nonetheless sing Hallelujah to the Messiah.

Sonia Sotomayor is the wrong choice for the U.S. Supreme Court for many reasons and should be categorically rejected. Yes, she may echo Obama’s political and racial beliefs but that is not how Justices should be chosen for the high Court. It is to the utter shame of the Republicans in the Senate and those claiming to speak for the Republican Party that there will be virtually no opposition to the Sotomayor appointment.

What does this statement Sotomayor made in 2001 mean to you? She said in a lecture, titled "A Latina Judge's Voice," she gave at the law school of the University of California, Berkeley: "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."

Whatever you may think about what Sotomayor said, Obama defended his nominee saying her message was on target even if her exact wording was not.

"I think that when she's appearing before the Senate committee, in her confirmation process, I think all this nonsense that is being spewed out will be revealed for what it is." (And what is that Obama, is it less than a racist remark?)

Obama's spokesman, Robert Gibbs, told reporters about Sotomayor: "I think she'd say that her word choice in 2001 was poor." But Gibbs said he did not hear that from Sotomayor directly. He said he learned it from people who had talked to her, and he did not identify who those people were. Sotomayor herself has made no public statements since her nomination became official
and was not reachable by any in the press concerned about what she said (and of course there are not many) for comment.

As has been pointed out by many on the radio and in the blogosphere, what would have been the reaction to a similar statement made by a white judge?

Obama made it clear what kind of person his choice (probably “choices if there are more openings on the court) would be. In announcing Sotomayor as his selection, Obama said he wanted a judge who would "approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice." But he also called her life experience essential, saying she had an understanding of "how ordinary people live." Obama does not want an impartial judge on the high Court who would apply the Constitution in court decisions, he wants someone, i.e. an activist judge, willing to ignore or rewrite the Constitution, who will “empathize” with so-called down-trodden people, especially people of color (white folks need not apply).

That Senate republicans should mount an all out opposition to Sotomayor’s appointment is a no-brainer but that is not the reality. But Republicans are divided over how aggressively to go after federal judge Sonia Sotomayor because she is a Hispanic (though a Porto Rican one not one from Mexico) and they are afraid of alienating Hispanic voters – how nonsensical that is. Consider how Bush, McCain and many Republicans fell all over themselves trying to get amnesty for illegal aliens and where did that get them – McCain and a host of Republicans running for office lost and did not get much of the Hispanic vote? Why do Republicans think that opposing Sotomayor will some how get Republicans fewer Hispanic votes?

Even more annoying (but not astonishing) a growing number of GOP lawmakers and conservative strategists are voicing concern over the strident rhetoric some prominent Republicans have used to describe Sotomayor, and some are denouncing right-wing groups for swiftly launching negative advertisements against her.

Instead of curling up in a corner, Republicans like radio host Rush Limbaugh and former House Speaker Newt Gingrich of Georgia say the answer is to harshly criticize Sotomayor. They both branded the federal judge — the daughter of Puerto Rican parents who was born and raised in New York — a "racist" this week for past remarks about how her ethnicity affected her judging. On Friday, Limbaugh likened picking Sotomayor to nominating former Ku Klux Klan leader David Duke for the job.

Unfortunately other Republicans like Senator John Cornyn of Texas criticized Limbaugh and Gingrich: "I think it's terrible. This is not the kind of tone that any of us want to set when it comes to performing our constitutional responsibilities of advice and consent," Cornyn told NPR. "Neither one of these men are elected Republican officials. I just don't think it's appropriate. I certainly don't endorse it. I think it's wrong."

Of course so-called GOP strategist Peggy Noonan also urged her party to "play grown-up," and dismissed as "idiots" conservatives who were out to attack or brand Sotomayor. (Whoa Peggy, if Limbaugh and Gingrich are “idiots” for opposing Sotomayor, what is Obama for nominating her?)

Nothing better illustrates the absence of male parts in Republicans these days than the following:

In an AP article by Julie Hirschfield Davis laid out the problem for the GOP, she wrote:

“A leading organization on the right, the Judicial Confirmation Network, launched an advertising campaign the day Obama named Sotomayor that bashes her record and concludes that ‘America deserves better.’

‘These things just taint the debate because it causes (people) to become callous toward our message. It becomes a 'cry wolf' situation," said Manuel Miranda, chairman of the Third Branch Conference, a conservative group, and a former senior Senate GOP aide. "They're just out to bash the nominee. This isn't about bashing the nominee; it's about engaging on issues.’

Miranda said he is concerned that Senate leaders — knowing that they don't have the votes to beat Sotomayor and worried about the political consequences of a prolonged effort to do so — will pass up the opportunity to have a drawn-out debate about her record and the two parties' dueling philosophies about the role of a judge. I am afraid that (Senate Republicans) will miss an opportunity.’"

The reality as noted by Gary Marx, the executive director of the Judicial Confirmation Network, Republican divisions are more about style and tone than substance. He said conservatives agree that Sotomayor is a "judicial activist" — someone who puts her own views above the law — regardless of how they express themselves.” As a consequence "Our ads are focused on highlighting her published writing and her own words, making sure those are raised because we feel they speak to the issue of judicial activism. We can have a healthy debate when we focus on her own (sic) writings, her published writings and spoken words."

Sotomayor fails as a candidate for the U.S. Supreme Court for other reasons than her racist view of judicial behavior; Sotomayor will be a classic activist judge on the high court who will ignore the Constitution when it conflicts with her social views. Everyone should see the video tape of Sotomayor where she says the Court of Appeals sets "policy." How outrageous for a judge who acknowledges her own judicial activism should ride into the Supreme Court without so much as a squawk from the Republican "opposition."

One example of Sotomayor's predilection to decide cases on the basis of race is the Ricci case. This is the report of the case that appeared in an AP article.

“In 2003, the New Haven fire department had several vacancies for new lieutenants and captains. Candidates for promotion had to take a written and oral test. Candidates had three months to prepare. Ricci gave up a second job to study. Because he is dyslexic, Ricci paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He studied 8 to 13 hours a day. And he succeeded. Ricci's exam ranked sixth among the 77 candidates who took the test.

But New Haven's civil service board ruled that not enough minorities earned a qualifying score. The city is more than a third black. None of the 19 African-American firefighters who took the exam earned a sufficient score. The city tossed out the exam. No promotions were given. Ricci and 17 other white firefighters, including one Hispanic, sued New Haven for discrimination.

A Federal District Court ruled that the city had not discriminated against the white firefighters. Judge Janet Bond Atherton argued that since "the result was the same for all because the test results were discarded and nobody was promoted," no harm was done."

But in reality, the decision meant that Ricci and other qualified candidates were denied promotions because of the color of their skin. This is the essence of discrimination. The exclusion of a person from earned advancement because of his or her race. The Ricci case exemplifies decades of faulty policy that mistook equal opportunity for equal outcome.

When the case came before the three-judge panel of the Court of Appeals for the 2nd Circuit, Atherton’s ruling was upheld in an unsigned and, as the New York Times described it, "unusually terse decision." One of the judges who upheld the ruling was Sotomayor.

Judge Jose Cabranes' dissenting opinion noted that the ruling "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal" and "contains no reference whatsoever to the constitutional claims at the core of this case," concluding that the "perfunctory" actions of the majority in their decision "rests uneasily with the weighty issues presented by this appeal."

In April, the Supreme Court took up the case in oral argument. The ruling is expected in June. Most legal scholars expect Ricci to prevail. But the debate over affirmative action will continue and no doubt Sotomayor will side with minorities regardless of the law.

Sotomayor’s racist comment about superiority of Latina ability to render judicial decisions was not the only comment that spinmeister Gibbs would have to excuse as a poor choice of words.

Judge Sotomayor's judicial temperament and choice of words were raised during her 1997 confirmation hearing to the appeals court. Sen. Jeff Sessions, the Alabama Republican who recently became the ranking member of the Senate Judiciary Committee, told Judge Sotomayor that she was out of bounds when she criticized mandatory minimum sentences from the bench during one sentencing proceeding as an “abomination."

"I do think that a judge, would you not agree, has to be careful in conducting themselves in a way that reflects respect for the law and the system," Mr. Sessions said.

Judge Sotomayor said she probably should not have used the word "abomination" to describe the guidelines, but that her record showed she didn't let her personal opinions affect her rulings. (Oh really?)

Sotomayor’s judicial ability is often taken for granted because of her many years as a judge but her reversal rate by the Supreme Court indicates a contrary conclusion. With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision. Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed.

"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.

I agree.

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