Sotomayor's Discriminating Defense

President Obama’s nominee to the Supreme Court, Sonia Sotomayor, has been deservedly criticized for her stated belief that minority judges make better decisions than “white males” because of their race, gender, ethnicity, and life experiences. The remark, repeated by Sotomayor in near identical form in speech after speech, has raised questions about her ability to be fair and impartial on the bench.

Surprisingly less criticized has been Sotomayor’s defense of her membership in an exclusive women’s club, The Belizean Grove. A little over two weeks ago, Sotomayor responded to questions from Senators about the group with an answer that made even her champions at the New York Times blush. Sotomayor said that her membership in the all-female group was appropriate because the group did not “invidiously discriminate” against men.

“I am a member of the Belizean Grove, a private organization of female professionals from the profit, nonprofit and social sectors. The organization does not invidiously discriminate on the basis of sex. Men are involved in its activities — they participate in trips, host events and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership.”

The Times pointed out that the group’s own website does not agree with Sotomayor’s characterization, describing the group as a, “constellation of influential women,” and seemingly containing no mention of any roles for men. Like her explanation of her racial comments, Sotomayor’s defense of her membership raises more questions than answers.

Those questions could be fertile ground for Republicans on the Senate Judiciary Committee to plow at Sotomayor’s confirmation hearings, which begin July 13. According to the group, The Belizean Grove’s members strive to form “mutually-beneficial relationships.” Republicans should pursue the notion that a sitting federal judge has no business belonging to such a group.

Senators might ask the nominee just how, if at all, members of the group could have expected to benefit from her membership. Did Sotomayor perform any favors for her sister members in her professional capacity as a supposedly impartial judge? Did she hear cases in which members of the group, their businesses, or their employers had an interest? Did she recuse herself from any case in which a member of the group had an interest? Why or why not?

Sotomayor’s membership in the group, even if it resulted in no tangible benefit to her fellow members, is a shocking case of poor professional judgment. The fact that, her interpretation notwithstanding, the group clearly discriminates on the basis of sex is bad enough. But for a federal judge to give the appearance that she is seeking to benefit from her position should be disqualifying. To paraphrase a famous alleged federal office broker, it is as if Judge Sotomayor believed that a federal judgeship is a valuable thing, and she was determined to make the most of it.

The Sotomayor nomination has largely fallen off the radar screen for the mainstream press. Even the Supreme Court’s reversal of her decision in Ricci v. DeStefano this week received only passing mentions and not very much detailed analysis of her original decision. The lull in coverage has served Sotomayor’s interest, as the public has not been exposed to a daily drumbeat of criticism of her nomination. It will be up to Republicans then to give her a thorough examination at her conformation hearings. Sotomayor’s Belizean Grove membership, her inability to recognize the discriminatory nature of the group’s membership policy, and the potential for conflict between her membership and her professional duties should all be explored in detail.

Not So Wise

Supreme Court nominee Sonia Sotomayor has come under fire for the following controversial comment that she made in prepared remarks at the University of California-Berkeley.

“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.”

Both the Obama Administration and the nominee herself have said that the comments would have been better “restated.” If by “restated” the Administration meant “repeated,” then the revelation that Sotomayor made nearly the exact same remark twice before and twice after the 2001 Berkeley speech would not be a surprise. As it is, however, Sotomayor’s views on the role of gender and ethnicity in her judicial decision making process has never been in more doubt.

More trouble for Sotomayor has come to light recently as a result of her filing an incomplete Senate Judiciary Committee questionnaire. The White House boasted that Sotomayor turned in her questionnaire, “faster than any nominee in modern history,” just nine days since her nomination. She may have wanted to hold onto it a bit longer.

Sotomayor did not mention a memorandum she signed as a member of a Puerto Rico Legal Defense Fund task force on the reinstatement of the death penalty in New York State in 1981. In the memo, the group argues that the death penalty, “…is associated with evident racism in our society.” Sotomayor, signature on the document is another indication of her apparently incessant and ingrained tendency to see race and ethnicity first, and facts second.

Both the additional speeches and the omission of the memo underscore the decidedly unwise manner in which the Obama Administration, and Sotomayor herself, have handled the nomination, the nominee’s characterization of herself notwithstanding. Whether the Administration did not anticipate the level of scrutiny that would be visited on its first Supreme Court nomination, or whether it is simply trying to rush the nomination through before all the facts can be ascertained is not known. But questions about what the Administration knew and when about the speeches and the memo are now bound to be a feature of her confirmation hearing. As are other as yet undiscovered controversies in Sotomayor’s professional career.

With 59 Senators and a high personal approval rating, President Obama should have been able to drive Sotomayor’s nomination through the Senate with little or no question. However, the Administration’s ham-handed attempts at crisis management, and it’s juvenile pursuit of some superfluous record has brought greater scrutiny on Sotomayor than otherwise may have been expected. This has provided Republicans with an opportunity to define Sotomayor and President Obama at the confirmation hearings. They should take full advantage of the Obama Administration’s missteps, and Sotomayor’s omission, to give her a thorough examination.

Sotomayor Obfuscates on "Wise Latina" Comment

Supreme Court nominee Sonia Sotomayor made the rounds on Capitol Hill today, meeting with Senators of both parties. According to Senate Judiciary Committee Chairman Pat Leahy (D-VT), Sotomayor addressed her controversial "wise Latina" remarks from 2001 during their meeting. Leahy would not say whether the nominee acknowledged that she misspoke when she made the comments, but her attempt to explain them only adds more confusion.

Here is what Sotomayor said in a prepared speech to a University of California Berkeley audience:

“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.”

Last week, the White House said that Sotomayor chose her words poorly when making the speech, adding that the judge was, "making the point that personal experiences are relevant to the process of judging." President Obama endorsed that line, saying that the controversy over the remarks was "nonsense." Still, the nominee spouted a completely different explanation in her meetings with Senators today.

"Sotomayor told Leahy that what she meant is that people have different backgrounds but 'there is only one law,' and 'ultimately and completely' she would follow the law.

Leahy didn't clarify whether Sotomayor acknowledged misspeaking, as even President Barack Obama has. Leahy said Sotomayor talked about her judicial philosophy, which can be guided by experiences but at the end of the day it comes down to rule of law." [emphasis added]

To clarify, Sotomayor now says that when she said life experiences matter to the process of judging, she was really saying that life experiences don't matter to the process of judging.

The "ultimately and completely" formulation came up again in a meeting with Sen. Jeff Sessions (R-AL), the ranking Republican on the Judiciary Committee, in what is clearly a White House supplied line to try and put the "nonsense" controversy behind the nominee. But rather than clear things up, Sotomayor's and the Administration's denial of the clear meaning of her words only creates more questions about what she meant when she made the speech.

Sotomayor, Obama, and the Felon Vote

Welcome American Spectator readers. Thanks to Quin Hillyer for the kind words and the link. -MI

Supreme Court nominee Sonia Sotomayor is an advocate of allowing felons to vote. "Advocate" is a loaded word when referring to a judge, and with good reason. Judges are not supposed to allow their personal preferences to influence their interpretation of the law and the facts at issue in a given case. But their really is no other way to describe Sotomayor's dissenting opinion in Hayden v. Pataki, a case brought by inmates in New York State under the federal Voting Rights Act.

The inmates were suing the State of New York for the right to vote, alleging New York's prohibition of felon voting was discriminatory based on race and ethnicity. Sotomayor sided with the inmates in a four-paragraph long opinion, holding that the Voting Rights Act prohibited states from disenfranchising felons because the majority are black, Hispanic, and other minorities.

The Washington Times excoriates Sotomayor for her shoddy legal reasoning pointing out that the Constitution grants states the right to deny felons the vote in the Fourteenth Amendment. The Times rightly characterizes her opinion in the case as a product of her inability to see past race and ethnicity and apply the law as written.

"Ms. Sotomayor is thus in the position of asserting that Congress can prohibit New York from doing something the Constitution itself specifically endorses. It's as if she thinks that black and Hispanic felons are convicted in order to deny them the vote, rather than being denied the vote as a result of being duly convicted. Her position ignores the fact that it is these convicts' own actions, their crimes – not any state-based racial discrimination – that make them ineligible to vote.

[Sotomayor's] dissenting opinion in Hayden v. Pataki is another example of her taking racial grievance mongering to absurd new depths. They are depths unbecoming a Supreme Court justice."

Unsurprisingly, as a Senator, President Obama was a co-sponsor of the Count Every Vote Act, a bill which would have restored the right to vote to all ex-felons nationwide, according to a description of the legislation the president provided during the campaign on an NAACP questionnaire. It's not likely that he was pandering. But what about as a Constitutional law professor? Does the president endorse the position Sotomayor expressed in her brief dissent on felon voting rights? How about Sotomayor's interpretation of the Voting Rights Act and the Fourteenth Amendment?

This is a question on which it seems that Sotomayor is very vulnerable. First, her legal reasoning – that Congress can trump the Constitution by statute – if that's what we must call it, is highly uninformed. Second, Sotomayor only took four paragraphs to elucidate her opinion. That leaves precious little room for justifications grounded in past precedent or legal analysis. It smacks more of an, "I like it, therefore it must be," approach to judging, at least in this case. Worse, the apparent lack of effort Sotomayor put into the decision suggests a lack of respect for the process that will not serve the country well were she to be confirmed. Justices must bring more heft than a curt, "Because I said so!" when ruling on matters of national impact.

Republicans should press Sotomayor hard on this case, and others, in private and at her confirmation hearings. They should also demand that the White House answer for nominating a judge who could not be bothered to explain her extra-Constitutional reasoning in Hayden v. Pataki, and who refuses to be bound by the Constitution or the law in attempting to implement her, and the president's, favored outcomes.

Gibbs Walks Sotomayor Back into a Corner

White House Press Secretary Robert Gibbs today began the Obama Administration's walkback of controversial comments made by Supreme Court nominee Sonia Sotomayor. At today's press briefing, the perpetually over matched Gibbs attempted to explain away Sotomayor's comment that a "wise Latina" would necessarily make better judicial decisions than a "white male" judge because of her gender, ethnicity, and life experience. But Gibbs never learned the first rule of being in a hole, and his explanation raises more uncomfortable questions for the nominee.

"I think she’d say her word choice in 2001 was poor. She was simply making the point that experiences are relevant to the process of judging. Your personal experiences have a tendency to make you more aware of certain facts and certain cases, that your experiences impact your understanding."

The only facts that a judge has any business considering, of course, are the facts at issue in the case before the court. Gibbs' assertion is an admission that the Administration wants judges who will decide cases not based upon the facts and the law, but on their personal preferences.

But Gibbs wasn't done digging, and used a quote from Justice Samuel Alito to try and bolster his position.

"When a case comes before me involving, let's say, someone who is an immigrant...I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position…. I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’…When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

The obvious differences between Alito's quote and Sotomayor's, however, is that Alito did not assert that he was a better judge because of his family's experiences. Alito did not allege that because of his family's story that he would reach more just conclusions than a Latina woman. And Alito did not say that say that his decisions were based in part on his personal history. Sotomayor did all those things in her remarks.

President Obama also defended Sotomayor today, calling the criticism of her remarks, "nonsense." But the fact that the White House is talking about this, and trying to explain it away, proves that the controversy is anything bu nonsense. The Administration knows it could have a real problem with Sotomayor's nomination if it does not move to stem the growing backlash against her for those statements. Gibbs' botched defense is the first crack in the White House's management of Sotomayor's nomination.

Sotomayor a Perfect Liberal Activist Judge

Supreme Court nominee Sonia Sotomayor has been deservedly criticized for two of her public statements: one in which she labels herself a "wise Latina" and declares that her judgement is necessarily better than a "white male" judge because of her gender, ethnicity, and life experience; and another in which she says that "policy" is made in the courts. As shocking as the first sentiment is, at least it is honest. Likely, Judge Sotomayor really believes that her ability to judge cases is better than a man's. Her entry in the Almanac of the Federal Judiciary says that lawyers who have worked with and argued before believe Sotomayor has an "inflated opinion of herself."

Most of the criticism of her second statement has focused on the notion that courts should not make policy, as the nominee believes. But it is what Sotomayor said immediately after that reveals her to be a perfect liberal activist judge. Worse, she displays a willingness to be dishonest about what she believes a justice's role in the system should be for the sake of protecting her judicial future.

Sotomayor made the remarks at a Duke University Law School forum in response to a question about the difference between the federal district and appeals courts. Sotomayor said that the difference was that, "Court of Appeals is where policy is made." Immediately realizing her gaffe, Sotomayor attempted to walk back her remarks. But in so doing, she did not retract her statement. Rather, she merely tried to cover up the truth she just exposed; even acknowledging the radical nature of her beliefs with an awareness that they could come back to haunt her.

"Court of Appeals is where policy is made. And, I know, and I know that this is on tape and I should never say that. Because we don't 'make law,' I know. Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know."

What we know is that Sotomayor realized immediately that her words could jeopardize her chances at a Supreme Court nomination sometime in the future, so she does her best to restore the veil of secrecy she just tore down. But her tone of voice and gestures make clear that Sotomayor does not believe a word of what she is saying. The audience's laughter proves that the message was sent loud and clear. Every student at that forum walked out secure in the knowledge that Sotomayor believes courts should make policy, but that they should never talk about that publicly.

If Sotomayor really believes that her role as an unelected justice on the Supreme Court should be to decide policy questions, then that should be a topic of discussion in her confirmation hearings. But as her half-hearted cover-up shows, Sotomayor does not want to be as honest about her view of the Court's role as she does about how gender and ethnicity influence judicial ability. Like all liberal activists, Sotomayor wants to hide her true intentions behind politically correct rhetoric. In short, she is willing to lie to gain power, after which she will do as she pleases.

Democrats and Sotomayor Have a Bolton Problem

Jeffrey Rosen, writing in The New Republic, highlights President Barack Obama's Supreme Court nominee Sonia Sotomayor's entry in the Almanac of the Federal Judiciary, which lists federal judges and rates them based upon the reviews of lawyers that have argued before or worked with each judge. Sotomayor, it seems, has a bad judicial temperament.

"Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like." [emphasis added]

Rosen had earlier reported on conversations he had with lawyers, clerks, and former judges on Sotomayor's Second Circuit, most of whom raised similar concerns about her fitness for the bench based on her "domineering" temperament and her "inflated opinion of herself." The almanac's entry confirms those observations.

The criticisms of Sotomayor by those who worked with her bear resemblance to those levelled at former U.N. Ambassador John Bolton during his confirmation hearings. Bolton was assailed by Senate Foreign Relations committee Democrats over allegations that he was a "bully" who routinely abused those in subordinate positions. The question of temperament was a key rationale used by Senate Democrats, and some Republican defectors, to deny the impeccably qualified Bolton confirmation.

Most legal scholars would agree that judicial temperament should be one of the most important factors in considering a nominee's fitness for the bench, along with experience and legal ability. Sotomayor's experience is not in doubt, although some have cast aspersions on her legal reasoning. Her temperament, on the other hand, falls well short of the standard expected in a Supreme Court Justice.

All judges must hear arguments dispassionately, and without regard to personal beliefs. That is especially true of the Supreme Court, where the weightiest of legal issues are decided with consequences for the entire nation. A justice cannot "attack" lawyers' arguments personally, must "understand their role" as adversaries advancing the interests of their clients, and cannot be "angry" and "excitable" on the bench. Based on the reviews of those who know best how she works, Sotomayor has not lived up to these standards.

Senate Democrats who voted against John Bolton for the U.N. ambassadorship based on concerns about his temperament cannot now justify their votes for Sotomayor, whose temperament has also been questioned. Her apparent lack of proper courtroom demeanor in deciding legal issues will certainly impact Americans more than any alleged lack of decorum exhibited by Bolton on the diplomatic front. When Democrats vote for her, they will be saying that Americans do not deserve a fair and dispassionate justice as much as foreign governments deserve a demure representative of U.S. national interests.

Obama's Supreme Distraction

President Barack Obama nominated Second Circuit appeals judge Sonia Sotomayor as his first nominee to the Supreme Court. Sotomayor, when she is confirmed, will become only the third woman and the first Hispanic to serve on the Court, replacing the retiring Justice David Souter. No word yet on the reaction from Pyongyang.

Pyongyang? Yes, Pyongyang. North Korea test fired not one, not two, not even three, but five new missiles yesterday and today in response to the United Nations Security Council's condemnation of its recent nuclear test. The two moves have sparked a new international nuclear crisis that has implications for Asia, the Middle East, and the United States. This is North Korea week in capitals around the globe from Tokyo, to Beijing, to Seoul, to London, Moscow, and even Tehran. But not in Washington. The Obama Administration's response is essentially to change the subject and distract media and public attention from the subject it does not want to talk about, foreign policy.

Ignore the Court

Thursday’s Supreme Court ruling in the consolidated cases of Boumediene v. Bush and Al-Odah v. United States for the first time grants foreign-born enemy combatants of the United States, captured on the battlefield in the process of planning or participating in attacks against U.S. targets, the right to challenge the circumstances of their detention in federal court. It is difficult to overestimate the impact that this ruling will have on the prosecution of the war on terror and, indeed, all future armed conflicts. The specter of American troops Mirandizing enemy combatants on the battlefield, or being called back from the front to testify in civilian court about the manner that a prisoner was captured, and the practical impossibility each of those outcomes would present to the U.S. military, should trouble every American who is concerned about the nation’s safety.

President Bush, reacting almost immediately to the Court’s decision, said that his Administration, “would abide,” with the ruling, adding, “That doesn’t mean I have to agree with it.” He spoke too soon, and did not go far enough. For the reasons cited above, and others, he should ignore this decision of the Court, and continue to apply the Military Commissions Act of 2006 as duly passed into law by Congress.

The unpleasant fact overlooked by Justice Anthony Kennedy and the four justices who signed on to his majority opinion, is that in ruling the military tribunals set up by the Military Commissions Act to be unconstitutional, the Court itself committed an unconstitutional act. Congress, acting under its Article III power to regulate the judicial branch, stripped the Supreme Court of the jurisdiction to hear habeas corpus petitions from detainees in the custody of the United States when it passed and the president signed the Military Commissions Act. The act specifically states:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005.

The Detainee Treatment Act vests the authority to hear habeas petitions in the U.S. Circuit Court of Appeals for the District of Columbia, not the Supreme Court. The very act of taking the cases constitutes a usurpation of Congress’s Constitutional powers, as well as a violation of U.S. law, by the Supreme Court. The ruling itself, of course, is a gross attempt to regulate the conduct of the Executive Branch in wartime by the Judiciary and has no basis in the Constitution.

Not since the Civil War has a president defied a ruling of the Supreme Court, when President Abraham Lincoln ignored a ruling that his suspension of the writ of habeas corpus was unconstitutional. Lincoln continued to hold persons deemed to be enemies of the Union. Like the Supreme Court, the Executive and Legislative Branches of government have a responsibility to interpret the Constitution. Lincoln, exercising his interpretation both of the needs of the war effort and the law, concluded that preserving the Union necessitated the temporary suspension of the writ. President Bush can and should make the same determination.

Should the president make such a decision, he would not be going nearly as far as Lincoln did. The president would be refusing to apply habeas rights to foreign-born enemy combatants, whereas Lincoln jailed American citizens. The president would be on firm legal ground in making this determination. He has inherent Article II powers to direct the military as commander-in-chief of the armed forces, and he would be upholding a duly passed law against a rogue Court overstepping its authority. Furthermore, since Congress expressly authorized the D.C. Circuit to rule on the status of the detainees at Guantanamo Bay, and that court ruled that the tribunals were indeed legal, President Bush can argue that he is upholding the decision of the highest court authorized to rule on the matter.

Americans understand that the proper role of the judiciary is to interpret the laws, not make them. They also understand that in this war on terrorism, every effort must be taken to prevent those who would do America harm from realizing their plans. The president has been handed an opportunity with this wrongheaded and unconstitutional decision of the Supreme Court to act on both principles. The Administration can strike a blow against terrorists and a rogue federal judiciary by simply refusing to submit to the will of nine justices in black robes.