Friday, July 17, 2009

Sonia Sotomayor 2.0: Originalist Judge Or Lying Opportunist?

Barack Obama was clear about his ideal Supreme Court justice: he or she should put personal empathy ahead of the Constitution. In fact, the former constitutional lecturer doesn't seem constrained by the document in any way. He voted against both John Roberts and Sam Alito, even though he admitted both were qualified. Both "no" votes were ideological.

We have heard and read about Sonia Sotomayor's judicial rulings and speeches about the law. She certainly has seemed to be in the Obama mold. "Social justice" comes before actual justice. Latina women make better judges than white men. Federal district court is where policy is need (despite Article I of the Constitution giving ALL legislative powers to Congress).

However, a different woman showed up for the Senate hearings leading to a vote on Sonia Sotomayor's appointment to the Supreme Court. This woman sounded like a champion of the rule of law who is more in line with Alito and Roberts than Barry Vladimir Hussein Soetero Obama.

James Taranto chronicled Sotomayor 2.0 for The Wall Street Journal. Some snippets:

Under normal circumstances, a judge who says the things Sonia Sotomayor has said during her confirmation hearings would not be able to win confirmation in a Senate with a solid Democratic majority. Consider some of the positions she has taken:

  • On empathy: She repudiated the idea that it has any place in judging, as we noted yesterday.
  • On foreign law: She expressed her agreement with Justices Antonin Scalia and Clarence Thomas and said flatly, "Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law."
  • On the 2nd Amendment: She said, "I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller." As to whether the Second Amendment applies to the states under the incorporation doctrine, she agreed with Justice Scalia that this is an open question.
  • On abortion: She declined to endorse Roe v. Wade, offering only the usual dodge that it is "the precedent of the court and settled, in terms of the holding of the court."
  • On judicial activism: She said that judges' "imposing policy choices in--or their views of the world or their views of how things should be done" is "improper."

Judge Sotomayor was under oath when she testified in front of the Senate. Now, I hope Sotomayor 2.0 is really a new and improved legal mind who indeed plans to use the Constitution as her guide rather than her unique Latina life experience. But, if she is more like the Obama ideal, that begs a question: does lying to the Senate in a judicial hearing constitute "high crimes and misdemeanors?" In other words, is that an impeachable offense? When Justice Breyer or Ginsburg inevitably use foreign law to justify a screwball decision and Sotomayor signs on to their opinion, will she have committed perjury? Something to file away for when the opinions start to flow.

No comments:

Post a Comment