Monday, July 13, 2009

The Senate Judiciary Committee today opens hearings on the most radical Supreme Court nominee in memory. Despite her compelling story of personal accomplishment, Judge Sonia Sotomayor has proved by her own words and actions that she is unfit for the nation’s highest court.

On gun rights, we learn from U.S. v. Sanchez-Villar that Judge Sotomayor sees no “fundamental right” at issue. On property rights, we learn from Didden v. Village of Port Chester that she thinks a town can seize land from its owner to give to another private developer for the same basic purpose, without a public hearing. (She also ruled, bizarrely, that the original owner would have had to sue before the land was even seized in order to meet the statute of limitations.)

On abortion, the New York Times describes Judge Sotomayor as “an involved and ardent” supporter of the legal efforts of the Puerto Rican Legal Defense and Education Fund while serving 12 years on its board — efforts that included repeatedly filing suits arguing that government should not “in any way restrict” abortion “rights.” The group argued that the Constitution mandates that public funds must be made available for abortions and that states cannot require parental notification or consent, informed consent or waiting periods. Those radical positions are outside the mainstream of American public opinion, and they put her more in favor of unrestricted abortions than is Justice David H. Souter, whom she would replace on the Supreme Court.

On voting privileges, Judge Sotomayor ruled in Hayden v. Pataki that currently imprisoned murderers and rapists have a constitutional right to vote. On racial discrimination, she ruled in Ricci v. DeStefano that firefighters who earned a promotion can be denied the promotion merely because they are white. On lawsuit abuse, we learn from Merrill Lynch v. Dabit that she can be so biased in favor of jackpot justice that a unanimous Supreme Court — liberals included — slapped her down.

On environmental issues, Judge Sotomayor seems to think deleterious economic effects of regulations should be ignored. The Supreme Court reversed Judge Sotomayor 6-3 in Entergy Corp. v. EPA, when she tried to force the Environmental Protection Agency to ignore the economic costs of superstrict regulation of water use at power plants.

Finally, in several cases, the Supreme Court has unanimously castigated Judge Sotomayor’s legal reasoning even when some of the judges have agreed with her results.

We know from The Washington Post that experts say Judge Sotomayor often pushes right up to the edge of propriety in exhaustively second-guessing the fact-finding of lower court judges. However, from our own analysis, when her decisions are particularly controversial and unpopular, she tends to hide behind short, perfunctory orders that avoid serious discussion of the constitutional issues involved.

From numerous speeches, public appearances and writings, all read in context, we know that Judge Sotomayor believes that:

c Objectivity, impartiality and neutrality are virtually impossible.

c It is a “public myth” that law should be consistent and predictable.

c Judges are justified if they “choose to see” only certain facts and not others.

c A judge’s ethnic and gender identity can determine which facts are chosen.

c Appeals courts (not just legislatures or governors/presidents) are where “policy is made,” and judges are justified on their own in “push[ing] the law in a new direction.”

c American judges should take foreign law and opinions into account in their legal analysis so as to “cobble together a culture of justice-seeking” and not “lose influence in the world.”

c Most infamously, “inherent physiological and cultural differences” help ensure that a “wise Latina … would more often than not reach a better conclusion than a white male.”

From top to bottom, this record is extremely troubling. In an interview with The Washington Times on Friday, Sen. Jeff Sessions, Alabama Republican, put it all into perspective:

“The thing that overrides all of this is the president’s stated view that a judge should show empathy in deciding cases. That’s not a legal standard. It’s more politics than law, and [Judge Sotomayor’s] speeches seem to go in that direction, perhaps even further so than the president. At the core of what we’ll be talking about is whether or not this judge will be committed to objectivity and impartiality in the conduct of the office. I think it’s a modern legal heresy that personal background and experiences can legitimately impact a decision of a court.”

Mr. Sessions is as correct as correct can be. That’s ample reason to defeat the nomination of this impressive woman, who is a demonstrably bad judge.

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