Judging Sonia

Sonia Sotomayor may be as wooden as Al Gore and more prone to spoonerisms than George Bush, but even I have to admit that she is fundamentally clueless about the 2nd Amendment.

In answer to a question from Senator Leahy … Well, let’s have a shortened version of the pandering exchange:

LEAHY: Thank you. And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?


LEAHY: … We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. [?] The Supreme Court has not held that applicable to the states.

Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states. … but would you have an open mind, as — on the Supreme Court, in evaluating that, the legal proposition of whether the Second Amendment right should be considered fundamental rights and thus applicable to the states?

SOTOMAYOR: Like you, 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.

She acknowledges that many Americans think the right to bear arms is important. Someone she knows belongs to the NRA. She has friends who hunt. There’s nothing in her answer that actually acknowledges we have a 2nd Amendment.

Let’s walk through it. Indeed, the 2nd Amendment does not grant the right to keep and bear arms. The 2nd Amendment merely recognizes a right that existed before the Constitution was a gleam in James Madison’s eye.

Ms Sotomayor’s understanding that the right to bear arms is important to many Americans is as irrelevant as it is ignorant. Many Americans would like to have Nationalized health care, but that does not make it a Constitutional right. If no Americans considered the right to keep and bear arms important it would still be their right.

One of her godchildren is a member of the NRA? Perhaps this is very indirect evidence of the empathy she would apply to any decision before SCOTUS involving her godchild’s rights under the 1st Amendment, but I doubt it.

She has friends who hunt? That must be in an Amendment I missed, because the 2nd Amendment has nothing whatever to do with hunting. That idea is a far-left-wing trope, invented in an attempt to lose fewer votes when trashing the 2nd Amendment.

The 2nd Amendment is about the right to self defense. The Founders assumed you have the natural right to defend yourself against individuals who would harm you and against a government that would steal your liberty. The 2nd Amendment does no more, or less, than acknowledge that you have this right, independent of the Constitution.

My biases are better than yours

“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.”
– Sonia Sotomayor

A better conclusion about what? For whom? On what basis? Lived whose life? For how long? Are we talking about Jennifer Lopez? Eva Peron? Comandante Ramona? “Ugly Betty”? Bill Dana in drag?

Well, Sonia Sotomayor is the person Sonia Sotomayor is calling wise and rich in experience, but it seems a stretch in light of her ‘isms. I would hope that a white male of moderate experience and average IQ would have a higher aversion to sexism, racism and narcissism than does Ms Sotomayor. She is, by her own lights, of the proper ethnicity and sex. Her statement, however, makes clear that she’s spent too much time in a leftist bubble for her experience to be called rich. She has been too long isolated from the meaning of the term “rule of law.”

Law. Not men. Or women. Whatever their wisdom or ethnicity.

If such nonsense had been uttered by a prominent white male judge, with roles reversed, he’d have been impeached.

Perhaps she could be asked during her nomination hearings for a complete ranking of judicial superiority by ethnicity and sex so we’ll know in future how to judge people on this basis. Are Asians better or worse than Hispanics, or is sex most important? Does this apply to transgendered persons and does the direction of their sex change matter? Please elaborate on how rich experience is superior for a Latina, with emphasis on how it contributes to wisdom? What could a white male do to equal this?

Why not Harriet Miers?

Sonia Sotomayor will be the new Supreme Court Justice.

Here’s a sentence I never imagined I’d write: Jennifer Granholm would have been preferable.

This appointment does not stoop – quite – to the level of Dubya’s nomination of Harriet Miers in one sense: Sonia Sotomayor is not an immediate crony of Barack Obama’s. It does share some characteristics, however. Sotomayor is hardly the most qualified appointee. Sotomayor is a female.

Otherwise, it is a much worse appointment. While it avoids a dubious, even reckless, emphasis on personal loyalty, it is solely political pandering. Personal loyalty is no reason to nominate a person as a Justice of the Supreme Court, calculated cynicism is not a justification for anything.

Live by identity politics. Rise through identity politics. Sotomayor will be confirmed, but there is some fun to be had with the prospect. Two questions decided by Sotomayor as a judge on the U.S. Court of Appeals for the Second Circuit are currently on the docket of the Supreme Court.

Ricci v. DeStefano, is a reverse discrimination case summarily, actually insultingly, rejected in an opinion joined by Ms Sotomayor. This article is worth reading in full. Here’s a significant bit, but there’s more good stuff at the link:

…firefighters in New Haven, Conn., who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

City officials said they wanted to add diversity to management ranks within the fire department. They made special efforts to design a test process that would reduce any bias that might disadvantage minority candidates.

But when no blacks and only two Hispanic applicants qualified for consideration for the management jobs, the city decided to scrap the entire test.

It should be noted that Frank Ricci is dyslexic and prepared for the test by studying 8 or more hours every day. He spent over $1,000 on books and tutoring.

This decision of Judge Sotomayor’s is particularly interesting given her ruling in Bartlett v. New York State Board of Law Examiners that a law school graduate with a reading and learning disability was entitled to extra time in taking bar exams. On appeal, the Supreme Court ruled that the Americans With Disabilities Act did not apply because Bartlett’s condition could be managed with glasses and medication. Ordered to retry the case, Sotomayor rejected the SCOTUS opinion, coming to the same conclusion she had made earlier.

The plaintiff was Dr. Marilyn J Bartlett. Her bio is here, these are the degrees listed:

  • B.S., State College at Worcester, Massachusetts, in Early Childhood Education -1970;
  • M.S.Ed., Boston University, Boston, Massachusetts, in Special Education -1976;
  • Ph.D., New York University, in Organizational and Administrative Studies -1982;
  • J.D., Vermont Law School -1991

Dr. Bartlett attempted the New York State bar exam 5 times and claims she was never given appropriate “accommodation.” One wonders if she was simply a Disability Advocate looking for trouble and how much accommodation her degrees required (beyond glasses and medication). She is said to “decode” at a 4th grade level. Whatever that means, it doesn’t sound like she could get a Ph.D, without studying a lot and probably with a great deal of assistance. I wonder if she paid for the assistance?

Judge Sotomayor wrote:

“Marilyn Bartlett suffers from a learning deficit that evinces itself as a difficulty in reading the speed, fluency, and automaticity of an individual with her background and level of intellectual ability. Despite this impairment, plaintiff obtained a Ph.D. in educational administration and a law degree. By virtue of superior effort and not a
small amount of courage, Marilyn Bartlett has been able to succeed academically and professionally despite the limitations that her impairment has placed upon her.

There’s no information on what level Frank Ricci “decodes,” but asking him about Sotomayor’s empathy might produce an interesting response. Maybe if he’d gotten a Ph.D. first…

The second case, Croll v. Croll, presents the same question as Abbott v. Abbott (the case presently before SCOTUS). These cases are about child custody and involve interpretation of the Hague Convention on International Child Abduction. Judge Sotomayor dissented from the opinion of the Second Circuit, citing the manner in which foreign courts had interpreted the question.

Judge Sotomayor argued that a broader interpretation of “custody” was more in line with the “object and purpose” of the Convention, and that this was how foreign courts had considered the issue.

Perhaps judge Sotomayor will score with this one. Not, I suspect, with Justice Scalia, however.

In other news,

Sotomayor asserts (Maloney v. Cuomo) that the Second Amendment only applies to the federal government. In so doing she explicitly rejected District of Columbia v. Heller, preferring earlier SCOTUS decisions (Presser v. Illinois, 1886) to underpin her decision. Here, she appears willing – again – to overrule SCOTUS. This case appears likely to be appealed. It will bring the incorporation clause of the 14th Amendment into focus if SCOTUS takes it.

The Supreme Court reversed Judge Sotomayor in Malesko v. Correctional Services Corporation

And overturned her decision in Entergy Corp. v. Riverkeeper, Inc.

On the two Sotomayor cases presently before SCOTUS, you might think delaying a decision on them would be preferable to the Obama administration so that Sotomayor might not be embarrassed by being overturned twice more while confirmation hearings are in progress. OTOH, you would think (wouldn’t you?) that she will have to recuse herself if she is confirmed before these cases are determined. This would seem to increase the likelihood she’ll be overturned while a sitting Justice.