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.

No Context for Twits

Anytime race becomes the subject of the debate, the subject becomes the debate.  It’s the old strawman debate technique.  Limbaugh was the first to raise the charge of racism against Judge Sotomayor and because he raised it there was a knee-jerk reaction to dismiss it and make him the target.  The White House was quick to claim the comments were taken out of context and major news outlets parroted without providing the context that would explain it all away.  Instead we were given a summary of their opinion of what that context was.

Naturally, they did this because Americans lack the attention span to read context.  The popularity of Twitter’s 140 charecter messages and six-word sound bites on the news, demonstrate that most Americans don’t want an in-depth understanding of the issues.  My own blog statistics confirm this opinion.  85% of visits to this site last less than five seconds.  But I am all about context, without it you can vilify anyone, especially a public figure who will provide thousands upon thousands of words from which to mine a few negative comments.

So exactly what did Judge Sonia Sotomayor really mean when she 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”?  Was the context truly, “exclusively about judging in questions of ethnicity and gender,” as Paul Begala says.  I am including the entire transcript of Judge Sotomayor’s speech – judge for yourself.

The specific soundbite being debated, in context, is addressing judging questions of ethnicity, but the entire speech is advocating the placement of women and hispanics on the bench and specifically the Supreme Court.  She seems to argue that race and gender should play a major role in judicial appointments.  Clearly she supports Affirmative Action in judicial appointments.  I think it is a fair argument that she would also bring that philosophy into her judgments on the high court.  In this speech she attacks Justice Thomas as not representative of blacks while making the argument that the Supreme Court needs a Latino justice.  Her perspective seems to be political more than racial in this.  This raises cause for concern.  Politically-charged justices are very dangerous to our freedoms as they will abuse the Constitution for political purposes.

Supreme Court Justices should rule on the basis of the United States Constitution not personal opinion, ethnic background, personal experience, or an agenda to bring racial balance to rulings.  Supreme Court Justices are to determine the Constitutionality of laws and the judgments of lower courts, as Sotomayor said herself in 1997, “It says what it says. We should do honor to it.”

My biggest concern involves her understanding of the Constitution.  It appears she is willing to allow state laws which she personally supports to violate the U.S. Constitution.  Apparently the Constitution does not protect people from state laws when those state laws agree with her personal political opinions.  Case in point her ruling in Maloney v. Cuomo and her assertion that the Second Amendment does not apply to state law.  This is the real reason Judge Sotomayor does not belong on the Supreme Court.

And now the full transcript of Judge Sonia Sotomayor’s 2001 speech to the University of California at Berkley.

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Surprise Nomination

President Obama shocked the nation today, when he announced the nomination of U.S. Court of Appeals judge, Sonia Sotomayor, to replace retiring Justice David Souter.  What?  True, Sotomayor was everyone’s guess from the moment Souter announced his retirement.  Any other choice would have likely resulted in disappointed outrage from the left.  But oddly, Judge Sotomayor is being hailed as moderate and not a liberal left thinker.  Is this odd, or is it part of a sales pitch?

Which is it?  Empathy or Constitutional Principles?

In my informal news survey on May 1st, Sotomayor was the number 1 recommendation from the press.  Obama’s directions seem clear, nominate a Hispanic woman with liberal credentials.  The President initially announced he was looking for someone less concerned about the constitution and more concerned about “the daily realities of people’s lives.”  I read that to mean an activist judge.

However, in the weeks following this statement the President seemingly retreated from that sentiment.  Today, the President said his second requirement for a Supreme Court Justice “is a recognition of the limits of the judicial role… that a judge’s job is to interpret, not make law.”  This is clearly the very definition of a conservative judge – a judge that believes in Constitutional constructionism.  Liberal activist justices, like Souter, rely on personal experience and their own sense of right and wrong in deciding cases.

Today news media and left-wing bloggers are concentrating on Sotomayor’s personal experience.  Why?  Because they are banking on her experiences as a poor Puerto Rican raised in the Bronx to make her a caring liberal justice.  The Huffington Post notes her support from some on the right but reassures left-wing liberals that a Justice Sotomayor will fight for gay and abortion rights agendas.

On Judicial Activism

The President told us he chose Sotomayor because he believed she had an “understanding that a judge’s job is to interpret, not make law.”  However, Sotomayor told Duke University law students in 2005, that the “Court of Appeals is where policy is made.”  Then laughingly she added, “we don’t ‘make law,’ I know.”  I am lead to conclude the addendum was said with a wink and a nod.  However, she is intelligent as well as well-spoken, so I am left wondering where she actually stands on judicial activism.

Assuming she was merely noting the fact of judicial activism, Hofstra law professor, Eric Freedman pointed out,  “It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals… It is thoroughly uncontroversial to anyone other than a determined demagogue.”  I would like to counter by wondering aloud, if so, it should hold that anything that is commonly practiced – regardless of its moral correctness – should be uncontroversial and accepted as normal. Thus, if torture is a common intelligence gathering practice, it should not be a controversial topic.  Those who engage in it should be accepted as normal within the accepted norms of their subculture.  However, to be fair to Mr. Freedman, he is simply contending that she is only noting the practice – but I am questioning her because she was polictically careful to neither support or condemn the practice.

Judicial Activists believe in creating law through creative reinterpretation of the Constitution.  In some cases even citing foriegn laws that support their personal convictions rather than sticking to U.S. legal precedence and sound interpretation of the U.S. Constitution.  The last thing we need on the Supreme Court is another Ruth Bader Ginsburg.

Just words, just speeches.

Are we to take seriously the President’s assertion that he was looking for someone with an “understanding that a judge’s job is to interpret, not make law.”  Since January it has become apparent to me that President Obama says most of the “right” things and a few times he has even succeeded in tempting me to think, “Geez, maybe he gets it.”  In fact, he is saying what needs to be said to convince the center-right majority to follow and not obstruct his agenda.  He then proceeds to act on his true motivations, which at times appear to contradict what he has publicly stated.

The assumption that Judge Sotomayor will be easily confirmed concerns me.  It concerns me because little to no questions will be raised.  I am little comforted that speaking before Congress during her 1997 confirmation to the Court of Appeals, she stated, “I don’t believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.”  She was seeking confirmation and needed Republican support.

I am not assuaged by assurances she is moderate.  (A blogger I respect predicted the White House and press would promote the nominee as “moderate.”) Such claims have as much credibility as President G.W. Bush assuring me that Iraq’s WMDs would be found.  If Judge Sotomayor is truly moderate I would expect strong opposition from more liberal Senators.  After all, this is their first chance in more than 30 years to seat an extreme liberal justice, it could well be their last chance for another 30 years.  I am just cynical enough to reject the notion that President Obama would throw this chance away.  If, in fact, history demonstrates that Obama really is a strict Constitutional constructionist, I will be stunned.

I’ve read over some of the judge’s decisions and I can see some of the “moderate” argument.  But I’m not buying it.  Her stand on the second amendment is particularly troubling, since it betrays her belief that the Constitution does not necessarily apply to state law.  That’s right, she stated that the Second Amendment does not apply to the states.  If the Second Amendment doesn’t then what other part of the Constitution is exempt as well?

Opposition will come only from bigots

The National Journal has stated that GOP senators are unlikely to oppose Sotomayor for three reasons.  I would suggest these are the same reasons the President nominated Judge Sonia Sotomayor.

  1. “She is the first Hispanic selected for the SCOTUS.”  Sotomayor demographics voted Democratic last election but have complaints about Obama.
  2. “She is a woman.”  Opposition might piss off a badly needed voting block.  (Women are not a voting block – but the left is constantly trying to train them to stay on the reservation.  Yeah, like you can train cats to run in a herd.)
  3. “She has an up-from-the-bootstraps story.”  She is the American dream, can anyone stand in the way of that and truly be an American?

Finally, there are two more things that raise serious concerns.  First, President George H.W. Bush appointed Judge Sotomayor to the District Court for the Southern District of New York.  Didn’t this same President also appoint Justice David Souter to the U.S. Supreme Court? Second, this quote from White House Talking Points, “Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them. In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time.”  Souter was also a Republican appointee – did that make him conservative? I’m not making a judgment as much as I am asking questions.

Finding a new Souter

President Obama will soon name his first Supreme Court nominee.  It should come as no surprise that a liberal justice on the Court for nearly 19 years would choose now to retire, when he can be assured that his replacement will be of a like-mind.  While the President might be wet behind the ears on the international scene, the same cannot be said of his political sense.  The President has already announced he is seeking a justice that will care about families and jobs.  Words that will resonate.  It seems certain Justice David Souter’s successor will hold unassailable liberal credentials.  But first a little history.

Justice Souter was appointed to the highest court in 1990 by then President G.H.W. Bush.  At the time, Souter was unknown, his appointment pushed by former New Hampshire Governor and Bush’s Chief of Staff, John Sununu, and Senator Warren Rudman (R-NH).  While we can clearly see Sununu and Rudman’s motives, it is bewildering to comprehend the elder Bush’s motives.  It appears Bush thought he could outsmart Senate Democrats and avoid another Bork disaster.  He decided to nominate a candidate who’s views would be hard to attack and difficult to document.  It was a strategy that was not very well thought out.  Just as sure as Senators could not be certain of Souter’s positions, neither could President Bush.

G.H.W. Bush had never been a strong conservative, so one might understand how he could have missed a huge warning sign hanging over David Souter’s name.  Mainly that Souter, not only had been a Director at Concord Hospital while abortions were being performed there, but in 1973, David Souter authorized abortions in opposition to NH laws of the time and only 3 weeks following Roe.  (No sooner had Roe v. Wade been argued than Souter was promoting abortion at his hospital.)  The Bush administration either missed this fact or the vetting process was so obsessed with finding someone acceptable to Democrats such as Edward Kennedy (D-MA) that they simply didn’t care.

Left-wing Liberalism is the new Moderate.

This history lesson is unlikely to escape President Obama.  He is under incredible pressure to appoint a liberal minority, preferably a minority woman.  Don’t expect a moderate as the Boston Globe suggests.  Oh but wait, the Globe refers to Justice Souter as a moderate.  Interestingly, this brings me to my point.  I had not read the Globe story when I began this essay, but in the course of continuing research I stumbled upon this gem.  The core thesis of my essay is that the media and the administration will portray whoever is nominated as a moderate.  My initial research nearly proved this theory wrong.  The New York Times suggested several candidates holding strong liberal credentials and touting that sex and racial prejudice would (and perhaps should) be a deciding factor in Obama’s nominating decision.  (Wow.  I have to take a mental breather hereWhenever discrimination occurs in favor of minorities it is held up as virtuous, while it is decried when minorities suffer – somehow this passes as completely reasonable to most Americans and all liberals.  I was raised on the idiom, “Two wrongs don’t make it right.”) However, the Boston Globe and then The Christian Science Monitor, bailed me out by beginning what I am certain will be the mainstream logic going forward.  Later in the day CNN declared Souter “a strong defender of rights,” I suppose it depends on what you call rights.

It must be this way in order to make the case that all conservatives are radical.  If they can re-educate American idiots that justices like Souter are moderate then it is a far easier thing to portray any conservative as part of the lunatic fringe.  This is the evolution from the War on Terror to the War on Conservatives.  It blows my mind that a justice who advocates partial birth abortions – but opposes the death penalty, denies Fourth Amendment protections to ordinary citizens – while insisting on civilian treatment for enemy combatants, – opposes the Second Amendment, and denies the First Amendment applies to high school graduations, could be referred to as moderate or anything other than very liberal.  Neither do I see how someone with these opinions can be referred to as a “defender of rights.”  Yet he is, only because of his consistent pro-abortion stance.

Get ready for endless speculation – or are those suggestions?

In the meantime, speculation will run rampant on who Obama will choose.  The President has only said he is looking for someone who has “empathy,” is intelligent, and of coarse, “an independent thinker.”  I read Obama saying, “someone just like me,” but then I’m a cynic. However, the biggest shocker was this statement: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”  As I mentioned before, Obama knows politics if nothing else.  These words are completely political since they make absolutely no sense in context of the Supreme Court.  Supreme Court Justices are supposed to reason at a higher level, they should be very well versed in historical legal precedence and abstract legal theories.  This is actually the job description. But apparently, the President wants to politicize this appointment.  Hell, why not just appoint a political contributor, after all we can’t expect any critical thinking from the press so why should we expect it from a Supreme Court Justice?  Just make sure the nominee is a compassionate and caring person.  (A little twist on the Billy Crystal routine from SNL, It is better to feel good than be good.)

The announcement is only hours old and the press is already busy making it’s suggestions for possible replacements.  I have attempted to list the top ten names.  I have to warn you, some of these people make no sense at all,  however, we no longer live in a sane world.  The top ten candidates being bantered about include the following:

  1. Sonia Sotomayor: U.S. Court of Appeals for the 2nd Circuit.  Hispanic female.
  2. Diane Wood: 7th Circuit appellate judge. Female.
  3. Elena Kagan: Incoming U.S. solicitor general. (Held a position as a clerk but has no judicial experience. Her only qualification seems to be that she has breasts.) Female.
  4. Jennifer Granholm: Governor (D-MI) and Former Federal Prosecutor.  Female.
  5. Kathleen Sullivan: Former Dean Stanford Law School and former Harvard law professor.  Female.
  6. Leah Ward Sears: Georgia Supreme Court Chief Justice. (First African American woman on the Georgia Supreme Court.) African-American female.
  7. Kim McLane Wardlaw: 9th Circuit Appellate Judge.  Female.
  8. Deval Patrick: Governor (D-MA) and former Assistant Attorney General.  African-American male.
  9. Harold Hongju Koh: Dean of Yale Law School and nominated by Obama for legal adviser to the State Department.  Asian-American male.
  10. Hillary Rodham Clinton:  Secretary of State and former attorney.  Female.

Notice any pattern in these speculative nominees?  Just because Ruth Ginsburg needs a little female bonding on the job, the press feels it’s their job to ensure the job gets filled by a woman, a liberal woman.  Well, one thing is certain; we won’t find Judge Judy’s name showing up anywhere, anytime soon – even though she is far more qualified than, say, Elana Kagan.

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