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  • “Not Our First Choice”: How Sotomayor Landed on the Bench

    A constant refrain among defenders of Judge Sonia Sotomayor is that she is actually moderate. Ignore her insensitive statements suggesting that there could be physiological differences between ethnicities which contribute to “differences in logic and reasoning.” Ignore her lightly mocking the idea that judges don’t “make law.” Ignore her dismissing the suggestion that judges can be impartial in most cases, and suggesting that it is a disservice to the country for them to ignore biases. And certainly ignore her opinions: upholding discrimination against a white, learning disabled firefighter; declaring not only that the Second Amendment doesn’t apply to the states, but that weapons laws don’t even implicate fundamental rights; and finding it unlawful for states to restrict the ability of felons—even double murders currently in prison—to vote. No, ignore all of those things, she really is moderate.Among the scant evidence provided in support of this moderate thesis is the claim of “bipartisanship.” To wit, the liberal Coalition for Constitutional Values is running a TV ad promoting Sotomayor, which touts the true but misleading fact that she was “first appointed by George H. W. Bush in 1991.” (Interestingly, they don’t even mention that she was appointed by President Clinton to the Court of Appeals.) The clear implication is that the public should feel reassured that the ever open-minded Obama has lived up to his promise of bipartisanship even in his judicial picks.


    Not quite. What the ad doesn’t reveal is that Sotomayor’s nomination to the District Court for the Southern District of New York had little, if anything, to do with presidential choice. It was in fact part of a political deal designed to strong-arm the Republicans into putting Democrats on the district court, at the peril of watching some of the president’s own nominations dwindle. Whether he thought Sotomayor was radical or not, President Bush had little choice but to nominate her.

    Byron York gives an account of the deal that took place. First, he notes that district court nominations are much different in practice than other federal judicial nominations: “Senators, even those in the opposing party from the White House, wield great power over who is nominated to the district court seats in their own states.” Therefore it is not uncommon for senators to strike deals with those of the opposing party in order to prevent them from stalling the president’s judicial nominees. In 1991, when Sotomayor was put on the district court, the Senate was under Democrat control. The two New York senators, Democrat Daniel Patrick Moynihan and Republican Alphonse D’Amato, had reached an arrangement on district court nominations even before the Bush 1 administration. D’Amato would give Moynihan deference for one out of every four New York district court seats. Sotomayor was one of Moynihan’s chosen nominees.

    “She was not our first choice,” said an official from the Bush 1 administration, “but she was someone who was, if we were going to get a nominee confirmed to that position — essentially someone we had to go with.”


    Failing to acquiesce to Moynihan’s choice may have had grave consequences even for Bush’s higher court nominees. Robert Alt has pointed out that Moynihan was in the habit of stalling Bush’s circuit nominees if Republicans attempted to refuse his district court picks: “I’ve personally talked to judges stalled by Moynihan who he had nothing against…He just stalled them to make sure his [Democratic] nominees got pushed through.”

    Unfortunately, we now see that another consequence of this deal is that it gives liberal groups cover to give the American public a false, moderate and “bipartisan” impression of Obama’s radical nominee.

    Posted in Legal [slideshow_deploy]

    6 Responses to “Not Our First Choice”: How Sotomayor Landed on the Bench

    1. Paddy, Washington, D says:

      What a terrible choice for a justice. This proves Jesse Helms's anti-compromise position true a hundred times over.

      Pliability in the nineties has come back to bite us for DECADES to come as this hyper-liberal rules from the Supreme Court.

      Rush saw it coming, but we need more like him in the government itself. http://briefingroom.thehill.com/2009/05/26/flashb

    2. J.C. Hughes, Texas says:

      Thank you to Deborah for sharing some interesting background information about Bush's Sotomayor appointment. A damn good example of how American freedoms are compromised and manipulated by self-serving lawmakers.

    3. Chuck Lanza, Cooper says:

      Empathy will lead to chaos

      With President Obama’s latest suggestion that a Supreme Court Justice should have “empathy” for the people who come before the High Court comes the potential for a great deal of harm to the rule of law. Traditionally, people in a position to interpret laws do so based on the written law, for the Supreme Court, this is the Constitution, and from precedent. As Lady Justice symbolizes, justice is blind; not to the law but the status, race, religion and other identifying factors of the litigating parties.

      In all of our sports, the rules are the rules and the officials (judges) apply the rules equally. They do not apply them based on having empathy, or on their judgment of the rules. If we encouraged sports officials to take empathy into their calls, would a baseball umpire call more strikes on white men than black women? Would hockey officials call more penalties on the taller, faster teams to balance the game for the smaller and slower players? Would the equal application of the rules be violated to balance the playing field for some perceived grievance? If they do, there will be chaos in the game as the players will not know what is acceptable and what is not. When the rules are applied based on someone’s empathy for the perceived plight of a person or a group we will have different outcomes for different people under the same set of circumstances and the same rules.

      Let’s find Supreme Court Justices who have successfully and continuously upheld the rule of law by basing their decisions on the written law not on their empathy for one of the litigants.

      Chuck is a candidate at http://www.thevirtualcongress.com.

    4. Thomas, Northern NY says:

      It is amazing the damage that can be done when people that should be able to clearly distinguish the difference between the right way, and the wrong way sell out. Apparently, Moynihan pushed Sotomayor forward simply because she was a Democrat, and for no other reason. All this bleeding heart crap about promoting women and minorities. So, for all these years, we've had a lousy judge in place, and now the potential for severe, longlasting damage. All because of political wheeling and dealing. It's just a shame that we are too lazy to monitor this stuff, and prevent it. It's also a shame that we didn't stand up to affirmative action years ago, and simply say "NO". Pick the best qualified, we need them more than ever.

    5. Barb -mn says:

      Am I understanding this right? President Bush may have appointed her, not because she's qualified (as she does not display equality but DOES display bias throughout her words and her personal history) but because he had to fill a race quota? Pretty darn dangerous. The American people of all races, creeds and humanities deserve those who have the qualifications necessary in a free society of equality. Hire the qualified and get rid of the quotas. Race quotas defeat American principles. Nobody is stopping anyone from qualifying for anything, nobody needs their hand held to have a genuine will to do whatever they choose. As free will builds ambition necessary steps of qualifications will be taken by CHOICE… and should NEVER be appointed to fill a quota. No one should be favored by race over another, especially in the American government.

    6. Andrew Luck - Phoeni says:

      Why is Mr. Obama in a rush to spend our tax dollars and to quickly get Honorable Judge Sotomaer Appointed I think she may not be the judge Obama picked her to be?

      Simple, he is trying to do as much as he can while his popularity is still high. However, they are smart enough to read all of the polls. They show his favorable rating about 60%, however, most Americans polled wants; 1) smaller government, 2) stop the bailouts, 3) stop the government from trying to run business’s, and 4) lower taxes. If I recall they said the same at the Tea Parties but the left laughed and said it was racially motivated. Hopefully this thought subsided with the California vote in California last week. TEAM Obama is quickly finding he needs to have substance to back his rhetoric. Clear examples is how Mr. Cheney took him to the wood shed regarding Enhance Interrogation.

      So now the GMC and Judge Sotomayer must be addressed ASAP before his approval rates drop, which they will soon.

      Senator Leahy should be ashamed of his recent actions to start the Judge Sotomayer hearings next month and not having consulted with his Republican counterpart!! The DNC has touted her as having more judicial experience than any other justice before they were approved to the Supreme Court, and she had heard over 36,000 cases. If this is the truth more time will be needed to thoroughly review her cases, writings, and public comments. There are several things she has spoken on which no judge should make, however, time will be needed to determine if her comments bled over into her court judgment, this would be fair for all.

      Senator Leahy this is a permanent appointment and there is no provision to appeal their decisions. Please keep in mind you work for us and not us for you. I respectfully request you talk with your Republican counterpart and agree on how much time would be appropriate to use and to be fair Honorable Judge Sotomayer and the country?


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