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  • Sotomayor Day 3: A Series of Sneaks

    Again, we present a quick wrap up of the day’s events.

    Perhaps the most significant nomination-related news didn’t come from the hearings but from the pages of the Washington Times. In an op-ed this morning, Wayne LaPierre of the NRA let loose on Judge Sotomayor’s anti-gun bias. She and colleagues on the Second Circuit ruled against Second Amendment rights in two cases, one of which, Maloney, is now being appealed to the Supreme Court, where Sotomayor may soon sit.

    Or not—LaPierre says those decisions “raise serious questions about her fitness to serve on the highest court in the land,” and when the NRA speaks, legislators listen. The big question now is whether the group will include the Sotomayor vote on its legislative scorecard. If so, even some Democrats would face a tough choice: rejecting the President’s nominee versus making themselves targets for challenges by pro-gun candidates.

    So far, the group’s kept mum on its decision, and may still be mulling the matter. But after today, there’s not much left for mulling. Judge Sotomayor gave a tortured reading of the High Court’s incorporation analysis—which determines when a constitutional right applies to the states—claiming that when the Court decides there is incorporation, the right becomes fundamental. But in reality, that’s perfectly backwards: the 14th Amendment incorporates already-fundamental rights. And as Senator Tom Coburn pointed out, lots of historical evidence shows that the Second Amendment was foremost among the fundamentals at the time of Reconstruction, when the 14th Amendment was ratified.

    And while the judge implied that she would probably step aside if the Maloney reaches the Supreme Court, she refused to state that she would do the same in a case raising the same exact issue. Souter might have found for incorporation; in the context of his jurisprudence on rights, it wouldn’t have been unlikely. But Sotomayor? The possibility is fading with every question on the Second Amendment that she ducks or dodges.

    The NRA has given the judge a fair shake by waiting this long—no doubt about it. But it’s getting awfully close now to the time for choosing. If the NRA does nothing more than publish an op-ed, it will have made its choice.

     A Wise Latina: After yesterday’s half-dozen or so interpretations and glosses on her most infamous statement, Judge Sotomayor added a couple more to the mix. First, she took down Justice O’Connor, on whose words Judge Sotomayor said yesterday she was riffing: “Hers literally and mine literally made no sense in the context of what judges do.” O’Connor’s quote, as paraphrased by the Judge: “a wise old man and wise old woman will reach the same conclusion in deciding cases.” You be the judge—does that “literally make no sense”? Said Sotomayor, O’Connor (read literally) meant that “when two judges disagree, one of them has to be unwise,” except that’s “clearly not what she meant.” So what did O’Connor mean? How about, simply, that a wise judge, whether male or female, would reach the same result, because wisdom has nothing to do with whether a judge is male or female? Of course, we’re often accused of being literalists…

    Physiological Differences: Many Senators didn’t want to touch the statement that Sotomayor made before her “wise Latina” remark: that differences in judging may be “born from…inherent physiological or cultural differences.” But not the brave Senator Cornyn, who asked the Judge what she meant by that. Her response: “There are, in the law, there have been upheld, in certain situations, that certain job positions have a requirement for a certain amount of strength or other characteristics that may be the — a person who fits that characteristic can have that job.” She continued, “There are differences that may affect a particular type of work.” So Cornyn asked again: “So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?” The Judge: “I’m not sure. I’m not sure exactly where that would play out.” The answer we were looking for: No, “physiological differences” between judges of different “gender and national origin” do not affect their decisions. Let’s hope for more on this tomorrow.

    Ricci: “When parties are dissatisfied [with a panel decision], they file for rehearing en banc. That’s what happened in Ricci.” Except it didn’t. Karen Lee Torre, counsel for the New Haven firefighters, only learned that the case had been considered for rehearing when the court informed her that the request, which had been raised by Judge Cabranes after he read about the case in the newspaper, had been denied. It came as a real surprise. Why didn’t they petition for rehearing en banc? The way Sotomayor buried the case, with an unpublished summary order, meant there was zero chance the court would have granted their request.

    Quick Hits

    • Self-Defense: Is self defense a right? “That’s an abstract question with no particular meaning to me.”
    • The Use of Foreign Law: “There’s a public misunderstanding of the word ‘use.’”
    • Public Speaking: “The message I deliver in all of my speeches is, ‘I’ve made it, so can you!’”
    • On Abortion: “I can’t answer that in the abstract, because the question, as it would come before me, wouldn’t be in the way that you form it as a citizen.”
    • Euthanasia: “All state action is looked at within the context of what the state is attempting to do and what liabilities it’s imposing.”
    • Crime: Senator Coburn to Sotomayor, after she used shooting him as a hypothetical: “Lucy, you got some ‘splainin to do!”
    • Foreign Law (again): “Unless the statute directs you to look at foreign law…foreign law cannot be used as a holding or a precedent or to influence the outcome of a legal decision interpreting the Constitition.” Sotomayor had said previously that foreign laws “get our creative juices flowing” and that banning foreign law would ask judges to “close their mind to good ideas.”
    • Foreign Law (again): “When I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.” Sotomayor is apparently unfamiliar with Supreme Court opinions from recent decades, including two very recent biggies: Roper and Boumediene.
    • Voting Rights: “The majority upheld a state regulation barring a group of people from voting.” What group of people? Felons. Barring criminals from voting, said Sotomayor, “denies or abridges the right to vote on the basis of race.”
    • Originalism: Arlen Specter, while winding his way to a question: “And how can you have original intent…where you have Judge Bork who believed that equal protection applied only to race and ethnicity?”
    • Empathy: Arlen Specter, still winding his way to a question: “But you had an evolution of constitutional law which I think puts empathy in a — in an OK status, in an OK category.”


    Posted in Legal [slideshow_deploy]

    13 Responses to Sotomayor Day 3: A Series of Sneaks

    1. Roger S., MA. says:

      This woman is obviously incapable or unwilling to give a straight answer to any question. Moreover, on any questions where her record casts grave doubts on her suitability to a seat on the SC, she continues to wriggle and writhe, attempting to equivocate in a manner obviously designed to preclude the questioner from someday being able to accuse her of having lied. Worse, she appears not even to be very good at it. We can see no evidence of either superior intellect, or of superior character. Both are requirements for effective performance on the SC. She just doesn't belong there. Period.

    2. Charles, The Republi says:

      Where do these people come from? If there is no right to "self defense", what are we "pets" of the state? How low is the bar for a Supreme Court Justice? Do we want the best & brightest? Or is going for the historic moment more important? How is this woman, for the rest of her life going to defend & interpet the Constitution? Hussein has commented enough about the "constraints of the Constitution". If Hussein gets to change the balance of the Supreme Court by putting another one of these "historic" characters there, game over.

    3. Grace, Florida says:

      I listened to some of the questioning yesterday. The thing that struck me was when she was asked for her own opinion on issues. She completley ignored the question even though it was asked repeatedly. Don't give us what the law states, tell us what you feel. Nope she wouldn't do that. To me that shows an enormous character flaw.

    4. Brad L, Phoenix says:

      Since we will never be able to convict her for perjury, any Republican Senator who votes for her confirmation should be voted out by their respective State. It is easy to see how the voting population has been mis-lead by the totality of all the lies put forth by the Democratic Party. Sotomayor's testimony is another example of saying one thing while believing something else. The day she takes the oath is the last day she will ever adjudicate on the principles she testified to at the hearings.

      We conservatives may not be able to stop this train of destruction right now, but we can let the American people know that it is wrong and bad for everyone. With firm statements of principles, the voters will have clear choices to make in 2010.

    5. Patti, Louisiana says:

      I have been watching the questioning and Sotomayor response interview off and on. Each time, she seems to be in a daze when she is spoken to by the committee members, then her responses are avoident when addressing the actual question (especially if 2 part) and she only states the law. Well, what would you do, how do you feel about certain situations –we really need to know where you're at on these issues that are vital to protecting our constitution and how you feel about everyday life occurences and fairness in resolution WITH justification.

    6. Brad S,, Detroit, MI says:

      I side with Roger S. entirely. I could only watch a few minutes of the hearings because all of her responses seemed calculated and prepared. (She was just plain lying.) It was obvious that her emotionless, dead-pan delivery on every answer was only in an effort to keep her from a "meltdown" and exposing her true character. Actions always speak louder than words and for both Sotomayor and Jesus 2.0 (BHO), no one should listen to what they have to say – only to what they are doing (or have done).

    7. Pingback: Sotomayor Day 3: A Series of Sneaks » The Foundry | Cogito Ergo Blog

    8. Lynn B. DeSpain says:

      If the Republic takes away the citizen's right to bear arms, then there is no Republic.


    9. David E Aldridge, Da says:

      Any Senator who votes for this person to be on the Supreme Court–think what those words mean–life time appointment–interpretation(sp)of the Constitution. Any Senator who does, needs to get voted out of office for violating their oath to uphold and defend the Constitution. We need to let our Senators know ( I have) that this person does not belong on the Supreme Court. I'm not very bright, but even I can see she isn't that smart. She's definitely sneaky, she's hiding her true liberal(policy from the bench)colors.

    10. Pingback: Sotomayor Day 3: A Series of Sneaks « Conservative Thoughts and Profundity

    11. Leonardo, Mayaguez, says:

      It seems to me that all of President Obamas's candidates, cabinet and czars are not qualified for their jobs, specially in the crisis we are in. Sotomayor is not being honest with the questions asked. I have a bad feeling about her. The president has known people with shady reputations in his past. He has the ability to pic the wrong people to help this country. It's amazing how the people on the continent close their eyes to this fact. I just can't understand how he is getting away with these odd actions. He is also friends with leftist organizations that do not have good intentions for the American ideals that I grew

      up with. Time will tell. I wish that I were wrong.

    12. Marshall Hill MI. says:

      After much rehearsal,we get poor and vaig answers!

    13. Jodi S. says:

      We are deciding whether Sotomayer is capable of handling a lifetime appointment to the SC. We deserve a candidate that can articulate her true feelings on matters when asked to speak about them. This is something she seems to be incapable or unwilling to do.

      It is wonderful that she made it to the confirmation process for the highest court in the land but decisions should not be based on being a latina, from a low-income neighborhood, or any standard other than the fact that she is a human being that strived for a goal and made it. That should be the only message we are considering here. Anything else puts a racial bias on the procedings.

      If a white male responded in the manor she has chosen or has been coached into, would we all be reacting the same way? Would his background be considered as hers has? If he said a wise white man might make a better decision would he even be at these procedings? The racial overtones are ridiculous. I empathize with her achievements but give no sympathies and wish the Senators would do the same in the name of fairness.

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