“We are now standing in the face of the greatest historical confrontation humanity has gone through. I do not think that wide circles of the American society or wide circles of the Christian community realize this fully. We are now facing the final confrontation between the Church and the anti-Church, of the Gospel and the anti-Gospel. This confrontation lies within the plans of divine providence. It is a trial which the whole Church… must take up.” Karol Cardinal Wotyla (Sept. 1976)

Tuesday, May 26, 2009

Sonia Sotomayor: Maybe Not the Worst Appointment

Well, I could not have been more wrong with my Supreme Court prediction. And believe me, it kills an Irishman to admit that. That being said, am I somewhat crazy to think this may not be the worse outcome?

Granted, Sonia Sotomayor is a make-it-up-as-you-go liberal judge, more decisions on whims than case histories. She may be one of the worst ever in this regard. She has been overturned more times than an undercooked pancake. CNN.com had a thorough listing of her rulings today and how many were overturned by the US Supreme Court. Here is the abridged version:

• Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)
• Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted
• Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0
• Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- reversed 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)
• Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)
• Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)
• Environment (Protection of fish at power plants): The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the "best technology" rule was too narrow. Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007)
• Taxes (Deductability of trust fees): The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach "flies in the face of the statutory language." Knight vs. Commissioner, 467 F.3d 149 (2006)
• Finance (Rights of investors to sue firms in state court): The Supreme Court unanimously overturned Sotomayor's ruling in an 8-0 decision. Dabit vs. Merrill Lynch, 395 F.3d 25 (2005)

There are many more cases listed, but you get the picture. Not exactly artisan of air-tight legal opinions, which brings me to my first point.

Her nomination is not that bad because she will be no match for Scalia, Roberts, Alito and Thomas thus having limited influence on the Court.

Jeffrey Rosen came out with a extremely critical look at Sotomayor, which is currently being denounced by some as politically motivated:

"Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")

Now, I do not know personally how bright she is. The confirmation process will be an interesting window into that answer. John Roberts set the bench mark in history how to respond in a confirmation hearing. This bench mark is out there and she will be judged by it, as Alito was.

I do know, however, that her mentioning that judges "make policies" when you know you are being tape recorded tells me you are not are not the sharpest nail in, or on, the bench. Honest? Yes. Intelligent? Very questionable.

She is going to be in for a very rude awakening if she thinks that her ideas will have free range and not be intensely challenged every step of the way behind the jurist doors.

There was a case a year or so back where the Court was ruling on whether lethal injection was cruel and unusual punishment. A lawyer arguing before the Court tried to make the case that it was painful and therefore cruel. Antonin Scalia caught the lawyer completely off-guard asking where in the law does it mention that the death penalty has to be painless. The point to be made here does not have anything to do with the validity of capital punishment, or whether or not it should be painless. The point being made here is that Scialia did not accept the first premise of a presented argument without making the lawyer prove it. He went down to the component level when most anyone else would have considered the statement reasonable.

Tonight could have been much worse if another judge with superior intellectual horsepower and powers to persuade the Court and America was named today.

Finally, my second point:

She was apparently the only judge named in the list of possibilities to give the Pro-Life cause any sliver of hope.

Life News wrote this about her:

"The only potential Supreme Court justice who may provide hope for pro-life advocates is Sonia Sotomayor, a member of the U.S. Court of Appeals for the Second Circuit...

Sotomayor participated in a decision concerning the Mexico City Policy, which President Obama recently overturned and which prohibits sending taxpayer dollars to groups that promote and perform abortions in other nations.

Writing for the Second Circuit, Judge Sotomayor upheld the Mexico City Policy, but [Americans United for Life] says the significance of the decision "may be minimal because the issue was largely controlled by the Second Circuit’s earlier opinion in a similar challenge to the policy."

AUL notes that Judge Sotomayor also upheld the pro-life policy by rejecting claims from a pro-abortion legal group that it violated the Equal Protection Clause."

There must be a recognition that Obama was the one who was nominating and a moderate liberal appointment is a victory. As mentioned previously, Diane Wood supported partial-birth abortion and could have easily gotten the nod. Obama was never in a better position, with the House and Senate, to nominate an militant judge and get her through. He will not be in this good of position even a year from now. Yes, it could have been a lot worse.

The President of Planned Parenthood checked in on the nomination:

"What our nation needs from our Supreme Court justices is a deep understanding of the law, an appreciation of the impact of the court's decisions on everyday Americans, and a commitment to the protection of our individual liberties. Judge Sotomayor will bring this dedication and commitment with her to the bench."

They seem to be happy, but there is also a cautious tone to the statement. PP is telling what the court needs first and foremost, and not praising the pick. If it was Diane Wood, the praise would have come first. They probably don't know any more than anyone else about how Sotomayor would rule. There is a growing need for a larger filing system for all the Liberals who have been burnt by Obama recently. I am hoping PP joins this catalog with this appointment.

As we all know, lifetime appointments have a way of dropping pretenses and ideologies that were necessary to reach the appointment. Ask David Souter or Sandra Day O’Connor if allegiances change. Hopefully, Sotomayor's Catholic upbringing has left an impression on her heart. Time will tell.

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