by Kerry Thomas
May 29, 2009
If you have concerns about Judge Sonia Sotomayor’s
qualifications (or lack thereof) to become a Justice on the United States
Supreme Court, as a Wisconsin voter you and I are in a more influential
position than most Americans.
The Senate
Judiciary Committee will consider the nomination and will decide whether or
not the nomination should be considered by the full Senate.
The Senate Judiciary Committee is made up of 12 Democrats
and 7 Republicans. 2 of the Members are
Wisconsin’s Senators Herb Kohl and Russ Feingold. Herb Kohl is the highest ranking democrat on the committee, other
than Chairman Patrick Leahy of Vermont.
Feingold is the third ranking Democrat on the committee.
If you have any concerns about Judge Sotomayor’s
qualifications, opinions or record, contact Senator Kohl and Senator Feingold and
express your views.
Personally, as a white male, I am not comfortable
with Judge Sotomayor’s statements during her October
26, 2001 speech at UC Berkeley that “… our gender and national origins
may and will make a difference in our judging” and 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.”
Justice is supposed to be blind to such racial prejudices. These racist statements alone would
disqualify any white male from further consideration.
Any white male who finds himself before this judge can and
should rightly feel a sense of racial bias against himself from this judge.
By the way … I have read through many of Judge Sotomayor’s
legal opinions. Even with no formal
legal training, just reading the Constitution, I believe I, a white male, have
more often than not reached better legal conclusions, based upon language
contained in the Constitution, than this “wise latina woman.”
Seems like the Supreme Court agrees.
I am uncomfortable with Judge Sotomayor’s opinion in Maloney
v. Cuomo, where she agreed that the
Supreme Court had never (to that point) held that the Second Amendment is
binding against state governments.
Sotomayor and the Second Circuit
federal appeals panel cited the 1886 Supreme Court case of Presser
v. Illinois, wherein the Court held that the Second Amendment "is
a limitation only upon the power of Congress and the national government, and
not upon that of the state."
This opinion ignores subsequent
Supreme Court findings that rights guaranteed by the Constitution and the Bill
of Rights are binding upon the States, and the People thereof.
With respect to Presser,
the panel stated that the recent Supreme Court case of District of
Columbia v. Heller, which struck down Washington DC’s gun ban as
unconstitutional and affirmed that the Second Amendment protects an
individual’s right to bear arms "does not invalidate this longstanding
principle."
I am uncomfortable with Judge Sotomayor’s opinion in Ricci v. DeStefano,
in which she rejected the reverse discrimination claims brought by Frank Ricci
against New Haven, Connecticut. (On
June 29, 2009 the Supreme Court overturned Sotomayor’s decision in this case.)
Ricci and 16 other white firefighters, together with one
hispanic firefighter, were the top scorers on a promotions test. The city declined to promote these top
scoring firefighters, fearing a discrimination lawsuit because black
firefighters performed disproportionately poorly on the test.
As a senator, Barack Obama said President George
W. Bush's Supreme Court nominees John Roberts and Sam Alito were clearly
qualified.
He voted against them anyway.
Senator Barack Obama strongly defended a senator's
right to oppose high court nominees because of their philosophical and
political views, not just on the narrower grounds of character and temperament.
If we were to simply use Senator Barack Obama’s
standards for considering a Supreme Court nominee, Judge Sonia Sotomayor’s
nomination should be rejected.
There are, however, more substantive reasons to
reject this nominee.
A number of Judge Sotomayor’s other legal opinions are
troubling. (My thanks to Ed
Whelan for this information.)
In Malesko v.
Correctional Services Corp., Judge Sotomayor ruled that the
Supreme Court’s 1971 ruling in Bivens, which implied a private action for damages
against federal officers alleged to have violated a citizen’s Constitutional
rights, should be extended to create an implied damages action against
a private corporation operating a halfway house under contract with the Bureau
of Prisons.
On review (Correctional
Services Corp. v. Malesko), the Court reversed Judge
Sotomayor by a 5-4 vote. Chief Justice
Rehnquist’s majority opinion labeled the plaintiff’s claim “fundamentally
different from anything recognized in Bivens or subsequent
cases.”
In his concurring opinion, Justice Scalia acknowledged that
“a broad interpretation of [Bivens’] rationale would doubtless produce
the application” made by the dissenters and Sotomayor. But, as he put it,
“Bivens is a relic of the heady days in which this Court assumed
common-law powers to create causes of action - decreeing them to be ‘implied’
by the mere existence of a statutory or constitutional prohibition.” The
Court has abandoned that power in the statutory field, and “there is even
greater reason to abandon it in the constitutional field, since an
‘implication’ imagined in the Constitution can presumably not even be
repudiated by Congress.”
In New York Times
v. Tasini, the Court, by a 7-2 vote, rejected the reading
of copyright law that Judge Sotomayor had adopted as the district judge in the
case.
Just last term, in Knight v.
Commissioner, the Supreme Court, in a unanimous opinion by
Chief Justice Roberts, reached the same end result as Judge Sotomayor on a tax
question, but faulted her for adopting a reading of the relevant statute that
“flies in the face of the statutory language.”
In Merrill
Lynch v. Dabit, the Court, in an opinion by Justice
Stevens, unanimously (8-0) reversed Judge Sotomayor’s ruling that certain state
law securities claims were not preempted by federal law. Stevens pointed
out that the Court had time and again rejected Judge Sotomayor’s interpretation
in cases from 1971 forward.
For these reasons and others, I oppose the nomination of
Judge Sonia Sotomayor to the U.S. Supreme Court.
This nomination should be rejected.