Republican opportunities in the Sotomayor nomination
When it comes to the confirmation process for Supreme Court nominee Sonia Sotomayor, Republicans have an opportunity to do something that would benefit both themselves and the nation. That is, they should use the process as a chance to hold forth on the meaning of the Constitution and the proper role of the judiciary in our political system and society.
Three main areas are ripe with opportunity for Republicans if they have the nerve to play hardball.
First, the notion that "empathy" should play any role in American justice.
Obama previously stated that he wanted judges that had "empathy" when it came to how they made their decisions. But empathy is merely a euphemism for justifying politically liberal results.
It is a legal pseudo-philosophy that inherently means being un-empathetic to someone else's claims based on nothing more than one's own feelings, as opposed to applying the law as it is written and leaving elected legislators to channel society's collected empathy.
Would liberals say it was OK for judges to be empathetic to rich people or large corporations vs. minorities? Of course not, nor should they. Empathy is always biased, which is antithetical to blind, impartial justice, and American's instinctively recognize it as unfair.
The second area to focus on is social issues. And several really big ones stand out.
On the subject of race, Sotomayor seems to be comfortable with what has come to be known as identity politics. In 2002, she stated that, "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."
If she holds that view when it comes to judging, what other aspects of our government and society does she believe it applies to?
Perhaps her position in the recent Ricci vs. DeStefano case can shed some light on that. The case was brought by a white firefighter who was denied a promotion after passing a test created to determine who was to be promoted. Given that no minorities passed, the city decided that no one would be promoted. Ricci sued, lost in district court, and the verdict was upheld by Sotomayor and several colleagues on the 2nd Circuit Court of Appeals.
In delicious irony, the Supreme Court will likely rule on the case (and probably overturn Sotomayor's decision) just prior to her confirmation hearings. This tees the issue up perfectly for Republicans.
On the subject of gun rights, just this past year we had the first Supreme Court decision in history ruling that the Second Amendment guarantees an "individual" right to gun ownership, (DC vs. Heller). Where does she stand on that opinion?
If her position in Maloney vs. Cuomo is any indication, she doesn't believe that the Second Amendment applies to state and local governments. How's that for "mainstream"?
Given that there are at least half a dozen Senate Democrats from decidedly "red" states that could be made vulnerable if seen to support someone who was against gun rights, Republicans can use this issue to make their lives miserable.
On property rights, in the case of Didden v. Village of Port Chester, her position approved the taking of private property from one citizen and giving it to another via government condemnation policy. Meaning she's all on board with the Supreme Court's highly unpopular Kelo decision. Private property is about as American as apple pie, and another no-brainer for the Republicans.
And her position on the pending issue of gay marriages, and whether or not one state can be forced to give legal recognition to a gay marriage performed in another state should be examined. A majority of voters in well over thirty states have passed referendums defining marriage as one man and one woman. The GOP needs to highlight and underscore this issue big-time.
The third area to focus on is her judicial philosophy.
America needs a debate on the unconstitutionality of judicial activism, but to enable that debate they first need to see its nature. The more the American people see and understand judicial activism and its implications, the more discredited it will become.
Sotomayor's shown herself to hold ideas that suggest an undemocratic view of the law and the Constitution. In a 2005 speech at the Duke University Law School, she stated that the "Court of Appeals is where policy is made". The White House has tried to downplay the comment, suggesting she was taken out of context, but the problem is that it's on YouTube for everyone to see, (in all of its glorious context).
In reality, it seems to have been a case of someone saying what they actually believed in an unguarded moment, which for a liberal is to say they "misspoke".
And that's not all she's had to say on the subject. After becoming a federal judge, she wrote an essay entitled "Returning majesty to the law and politics: a modern approach".
In it she states that, "The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances." And: "Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law... Much of the uncertainty of the law is not an unfortunate accident: it is of immense social value."
This is classic "living Constitution" garbage, which is liberal shorthand for "the law means what we say that it means". It's an advocacy of the Supreme Court as our "supreme legislature", composed of unelected, unaccountable, policy making oligarchs. Radical, liberal judicial activism defined.
Given that presidents generally nominate judges that have the same philosophy that they do, what does this tell us about Obama? What should it tell those independents and moderates who voted for him?
These are exactly the kind of questions that the Republicans need to focus on.
Sotomayor is not the target. The target is an American public badly in need of an education on the Constitution and the role of the judiciary in our political system.
It's a task the Republicans should take on with gusto.