Posts Tagged ‘ Sonia Sotomayor ’

Sotomayor to make her first bad decision

Soon after Sonia Sotomayor was nominated for a seat on the Supreme Court of the United States, I discovered her position of gun ownership.  During her confirmation hearing she was asked about her position on Second Amendment rights.  In both cases, in my eyes, she plainly said she opposes private ownership of guns and to hell with the Second Amendment.  It is also interesting to note that in her first case she will be deciding McDonald v. Chicago, a gun ownership rights case.  One wonders if her gun position influenced the decision to nominate her. Now she sits on the highest court in our nation and she it about to essentially pluck the Second Amendment from the Bill of Rights.  That is, if enough of the other eight justices can be persuaded by the upside down logic she uses.

Let me repeat my stand.  I hate guns, I hate violence, but I respect the U.S. Constitution.  I don’t own a gun, although I have been to the shooting range and fired a few hundred rounds in my life.  I can hit a target consistently and understand that the experiences is entertaining.  I get the same satisfaction from a video game.  That said, I have also read the Constitution, as well as the Federalist Papers, the founding fathers argued about this issue – no not the video games, gun ownership.

A Short History of Rights

Those of you who have been educated in public schools might not understand the significance of the Bill of Rights.  Madison initially strongly opposed adding a Bill of Rights, arguing that basic human rights were unnecessary to guarantee.  He felt that if rights were guaranteed in writing then any rights not included could be construed as not granted. He held onto this argument for quite a long time.

However, the people and specifically their elected representatives, felt very strongly that rights needed to be protected in the Constitution.  They felt so strongly that many states refused to ratify the Constitution without a Bill of Rights.  Richard Labunski’s, James Madison and the Struggle for the Bill of Rights, states that some states suggested long lists of guaranteed rights as a condition to their signage.  Only a guarantee that a Bill of Rights would be included later, convinced some states to sign.

Virginia’s Patrick Henry felt Madison’s position extremely dangerous to our long-term liberty and vehemently opposed both Madison and the Constitution.  The issue of guaranteed rights was so important to people of Virginia that Madison lost his bid to become one of the state’s first Senators.  In a revelation that has been often repeated since, Madison was convinced to change his mind.  He became a champion for amending the Constitution to include a Bill of Rights.  During the amendment process hundreds of amendments were proposed by the various states.  Labunski writes that when all the duplicates were removed there were about 120 suggested rights to be guaranteed.

This brings me to my point. Madison argued that it would be difficult to protect all the rights that might be subject to legislative abuse, rather he suggested, only those rights deemed most highly valued and in need of protection should be codified into the Bill of Rights.  It is this argument that resulted in only TEN federally guaranteed rights forming the Bill of Rights.  These ten rights were deemed to be the most important rights for people living in this representative democracy.

The Bill of Rights

The Bill of Rights

If these rights among the original 120 were all that were chosen they should be venerated and immutable.  There should be no question of their application or coverage.  The original states all demanded these guarantees, that some state constitutions do not guarantee one right or another is a moot point.  We could argue those states felt such a guarantee unnecessary due to the existence of the Bill of Rights.  But here is where James Madison is simultaneously correct and wrong when he originally argued against the Bill of Rights.  Madison thought if some rights were codified then those rights not codified would be assumed to be not granted.

We see this point of view being argued today.  CNN displayed a map on their so-called magic wall on Friday, displaying six states that do not contain gun ownership rights in their state constitutions.  The anchor suggested that the lack of guarantee meant no such right existed within those states.  Madison was just shot with his own gun – so to speak.  He was right that codifying rights meant non-codified rights would be denied.  But where he was wrong, was assuming the government would recognize inherent rights in the first place.

Federally guaranteed rights

Since the Bill of Rights was added to the U.S. Constitution courts have repeatedly agreed that these rights are granted to the American people.  Free speech, religion, press, assemblage, search and seizure, jury trial, cruel and unusual punishment, ect. all accepted as universal in application.  Your state government cannot torture you to death no matter how heinous your crime because of the bill of rights.  Your state cannot shut down the local newspaper for criticizing the governor because of the Bill of Rights.  Virginia had an official state religion prior to the Bill of Rights but no longer does.  Why?  The Bill of Rights.

But now when it comes to the subject of gun ownership, suddenly we have a Supreme Court Justice arguing that this particular right does not apply to the states.  The source of the argument is that the Bill of Rights limits the federal government only, but it essentially does not restrict state law.  If the state of Illinois decided to shut down or arrest the ownership of The Chicago Tribune for calling out Blagojevich surely the U.S. Supreme Court would rule the state’s action unconstitutional.  No one would question it or argue that the First Amendment does not apply to state law.

Yet that is precisely what Sotomayor has argued.  This is an issue that should concern both conservatives and liberals alike.  If the Supreme Court sets a precedence that any right codified in the Constitution can be usurped and otherwise disregarded by any level of government a dangerous assault upon liberty has occurred.  One can call my argument slippery-slope, but it is a very real situation.  Courts are slaves to precedence and judicial slippery-slopes are not coincidental but dictated largely by precedence.  While Sotomayor may have little regard for individual rights or the absolute power of the Constitution, we can hope and pray that the court’s other members seriously think through the ramifications of their decisions before ruling on McDonald v. Chicago. Fortunately, the balance of the court seems unlikely to follow the junior justice’s misguided opinions.

Sotomayor: It’s not what I believe…

Today Senator Tom Coburn (R-OK) questioned Judge Sonia Sotomayor about the 2nd Amendment.  She defended her stance on the Second Amendment saying “it applies to Federal Government regulation.”  She went on to say that in Maloney the question was, “was that right incorporated against the states?”    She then claimed that in District of Columbia v. Heller, the Supreme Court had said, “it’s not.  So it’s not fundamental in that legal doctrine sense.  That was the court’s holding.”  I think she thought she could pull that one over on us, but Coburn was versed on the case and he didn’t let her get away with it.  He asked, “Did the Supreme Court say that it definitely was not or did they just fail to rule on it?”  Sotomayor began to back pedal and Coburn pointed out that “there’s a very big difference there.”  In fact, Heller, held that local laws cannot violate the Second Amendment, only regulate for the purposes of public safety.

The United States Constitution is the Supreme law of the land.  It trumps all Federal, State, and local laws.  It even trumps foreign treaties and Presidential executive orders.  The Supreme Court can find any of these unconstitutional if they infringe on the rights of the people or anything covered in the Constitution.  So why does Sotomayor argue that any right guaranteed by the U.S. Constitution might not be incorporated against the states?  Obviously she opposes gun ownership.  If the High Court were to find or create a loophole such as deciding the Second Amendment does not protect citizens from State laws the amendment would effectively be rendered null and void.

Coburn pressed her on this issue asking, “What we have today, as the law of the land, as you see it, is I do not have a fundamental incorporated right to bear arms?”  She attempted to deflect the questions by responding, “It’s not how I see the law…”  Coburn underlined the question to counter her deflection, “As you see the interpretation of the law today, in your opinion of what the law is today, is my statement a correct statement?”  She did not want to answer this question.  It was a straight-forward question, an important question, a critical question.  But no, she deflected, “No, it’s not my interpretation, I was applying both Supreme Court precedent in deciding that question and Second Circuit precedent that had directly answered that question and said it’s not incorporated. The issue of whether or not it should be, is a different question and that is the question that the Supreme Court may take up?”

And that is precisely why Judge Sotomayor must answer the question.  We should not have a Supreme Court Justice who does not fully respect the supremacy of the Constitution.  But Sotomayor keeps trying to put her decisions off on others even at the expense of warping SCOTUS rulings as she did in insinuating that Heller maintained the right to bear arms is not incorporated against the states.  A Supreme Court Justice decides how the Constitution is applied.  They do so from precedence as well as their own interpretation of what the Constitution says.  Many times they agree with precedence but they are not bound to precedence.  Often the Court has overturned previous Supreme Court rulings, as Sotomayor has pointed out in these proceedings.

So when Sotomayor says, “It’s not what I believe, it’s what the law has said about it” she is evading the question.  It is indeed what you believe since you will have a voice in deciding and influencing other members of the Supreme Court.  Senator Coburn then repeated the question yet again.  This time, as one might ask a child, spelling out the question, “I claim to have a fundamental guaranteed spelled out right, under the Constitution, that as an individual and applies to me the right to own and bear arms.  Am I right or am I wrong?”  Her response astounded me.  People should demand Democrats take a second look at this nominee.  Exasperated she replied, “I can’t answer the question of incorporation, other than to refer to precedent.  Precedence says, as the Second Circuit interpreted the Supreme Court’s precedent, that it’s not incorporated.”  In this answer, she answers in such a way that the press will gloss over it in an uncritical manner.

Heller, as I, a layman, read it never offers any precedence saying the Second Amendment does not apply to state law.  In fact, Heller appears to me to support gun ownership while allowing for limitations that protect the public safety.  Senator Coburn wonderfully countered Sotomayor’s obfuscation when he said, “In the Constitution, we have the right to bear arms.  Whether it’s incorporated or not it’s stated there.  I’m having trouble understanding how we got to the point where the right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has set aloft and is fixed and something such as the Second Amendment which is spelled out in the Constitution and is not settled law and settled fixed.”

Democrats can call Sotomayor moderate but I call her position dangerous.  For me, this is the heart of what qualifies one to sit on the Court; how highly do you value the words, as they are written, in the Constitution?  When you, as a judge, start deciding in your mind or in your judgments that a part of the Constitution, with which you disagree, isn’t valid on any level, you are an activist judge.  The Constitution is fixed (unless amended) and it is the supreme law of the land.  There should be no debate on this.  Senator Coburn asked a simple and valid question and 20 minutes later he was still struggling to get Sotomayor to answer it straight.  However, she answered it in her Second Circuit ruling and she answered it wrong.

Senator Coburn landed a solid hit on Sotomayor and I fully expect him to be personally attacked by the left and naturally the press.  Even as I wrote those words, I saw an AP story pop up entitled, Senator Ricky Ricardo? Coburn evokes Lucy show.  When I heard him make the reference, I got it, but thought in light of the scenario it was funny and innocent.  Now I expect it will be the basis of a concerted effort to distract ordinary Americans – who value the Second Amendment – from the issue.

Proof She Doesn’t Get It

Sotomayor does not belongDoes having 80% of your rulings overturned by the Supreme Court suggest a nominee lacks the sensibilities to hold a position on that court?  I believe it does.  Upon appeal, four out of five of Sotomayor’s decisions have been reversed.  This clearly demonstrates a lack of understanding of the Constitution.  If the nominee in question was overruled on a single issue (even repeatedly) it would mean nothing because courts can and in the past have been in error and it took later courts to correct them.  Dred Scott and Brown v.  Board of Education come to mind.  However, when nearly every decision, spanning several issues, is found in error by the Supreme Court, this is a very damning indictment against the nominee.  I must conclude this nominee is unfit to sit on the court and in fact a danger to the freedoms we have fought so hard to secure.

When I first read about Sonia Sotomayor I approached her with a completely open mind.  Prima Facie my only reservation was her contention that the Second Amendment to the Constitution did not apply to state law.    This was a serious concern which outside the ranks of gun enthusiasts received nearly no attention.  One must understand that the Constitution is the supreme law of the United States.  It trumps all federal, state, and local laws.  So for a federal judge being considered for a position on the Supreme Court – the court that interprets the Constitution and how it will be applied to all our lives  – to express the opinion that a portion of the Constitution does not apply to state law demonstrates a clear lack of understanding of the Constitution.  Reading and listening to Judge Sotomayor speak I did not get the impression she is an idiot – perhaps not the most intellectual judge, but hardly stupid.  Therefore, I conclude she used this line of reasoning as her only recourse to allow a state laws to stand that clearly violated the Constitution because she personally opposes weapons.  (For the record, I too abhor violence and would love to live in a weapons free peaceful planet, but we don’t and the U.S. Constitution is quite clear in granting civilians the right to bear arms.)

When one reads the complete text of Judge Sotomayor’s 2001 Berkley speech (aka “Wise Latina” speech) you understand that Judge Sotomayor is acutely, perhaps uncomfortably aware of race.  In this speech it is clear she is a strong advocate of affirmative action and sees minorities as a underrepresented and in need of unfair advantages to succeed in society.  This speech strongly urges affirmative action in the appointments of federal judges and Supreme Court Justices.  Merit does not seem to cross her mind as a qualifying attribute.

This brings us to Sotomayor’s most recent Supreme Court rebuke.  In 1983 the city of New Haven, CN needed to fill some leadership positions within the fire department.  The union required an exam be taken to qualify.  Presumably to keep the buddy system from promoting people and ensure positions were filled by qualified applicants.  The rules require that the position must be filled by one of the top three scoring candidates.  Those scores were achieved by two white and one Hispanic applicants.  Because blacks scored half what the top three had scored the city feared being sued under Title VII of the 1964 Civil Rights Act, even though the test results had not shown disparity in the past.  The city decided to ignore the test results and promote a black firefighter with a lower score.  Eighteen discriminated against firefighters sued in the case now known as Ricci, et al. v. DeStefano, et al.

Skipping the lengthy details the Second Court of Appeals (Judge Sonia Sotomayor) held that the city made the right choice and that favoring minorities even if it resulted in discriminating against whites (don’t forget one of the plaintiffs was Hispanic), was justified.  Judge Sotomayor is not a champion against discrimination but rather a champion for affirmative action.  Fairness, justice, and merit are inconsequential to achieving idealistic goals.

White House Press Secretary, Robert Gibbs, commented that today’s ruling, was “a fairly definitive opinion that she follows judicial precedent and that she doesn’t legislate from the bench.”  She doesn’t?  I do follow what he’s getting at, after all she voted in the minority.  Also he might be alluding as some have suggested to Grutter v. Bollinger, the University of Michigan case where SCOTUS ruled that a university could use race to promote diversity.  I disagreed in that case and I will concede that the Court is inconsistent when it comes to issues of fairness.  However, I do see a difference between the two.  In Grutter, the court was looking at the goal of educating more minorities and better preparing them for the world.  A laudable goal and one where I sympathize and agree minorities are best served when given help achieving higher education.  If the court were to err here is where I’d like it to err.

In Ricci, however, we were talking about a job, one where lives will be on the line.  Do we want minorities holding a job because we pity them or because we feel they deserve it based solely on their skin color?  This is racism.  Then we have the safety of the public and the firefighters to worry about.  A bad decision could kill someone.  I agree with the court on fairness too.  Promotions should be earned and if the African-Americans in New Haven had the highest scores no one would have wasted a minute wondering if they should be promoted.  I see racism all over this decision since African-Americans were given preference even over the Hispanic.  If they were simply worried about Title VII they would have promoted the Hispanic and one white.  But clearly they wanted to promote a black.  I had a client a few years ago who fired most of his white staff, (one at a time), and replaced them with African-Americans.  He was white, (and from New Haven), he was wealthy, and he felt guilty.  He told me once that he felt he owed it to blacks to make up for past discrimination.   He was a racist doing penitence.  If anyone had said that there would have been a fight.  He believed he didn’t have a racist bone in his body but by treating African-Americans like children and condescending to them he was a racist.  Affirmative Action treats minorities like dumb helpless inferiors who cannot help themselves.  The policy assumes their lack of mental acuity requires that powerful whites help them out.  I disagree and oppose any decision based on race.

Sotomayor’s judgments seemed firmly based in her idealism.  She is fervently pro-affirmative action and do we really want anyone on the court with a narrow race-based agenda?  However, I believe this is what has made her President Obama’s ideal candidate.  As he too is pursuing his goal of transforming this nation into his ideal  at all cost.  Appointing Sotomayor to the Supreme Court of the United States is part of the plan.  Damn the Constitution because ultimately the Justices on the high court determine law since they can make up or ignore any facet of that august document and no one can challenge them.

If the court is stacked with social engineers and you can kiss your freedom goodbye.  It will take another revolution to fix the damage that will be done.  I’m afraid with this generation of cattle it wont happen in my lifetime.

%d bloggers like this: