Supreme Court nominee Sonia Sotomayor
is sworn in at her confirmation hearing
before the Senate Judiciary Committee,
July 13, 2009.
of Judge Sonia Sotomayor
to the Supreme Court has generated controversy,
but its outcome is not in doubt.
"Unless you have a complete meltdown,
you will be confirmed,"
South Carolina Senator Lindsey Graham
told the nominee when the Judiciary Committee
hearings opened on Monday.
It would be hard to find anyone who disagrees.
This week's hearings, then, are all that stand between Sotomayor and one of the most consequential jobs in American life. As a Supreme Court justice, she will be shaping national policy for years, perhaps decades, to come. Long after the president who nominated her has left the White House, Sotomayor will likely still be on the bench, wielding an influence on matters ranging from property rights to labor law to free speech to criminal procedure. With the other justices, she will exercise powers nowhere mentioned in the Constitution, yet by now accepted as the high court's prerogatives: to strike down state and federal laws, to bind other branches of government, to constitutionalize new rights, to have the last word on the meaning of terms like "due process of law" and "establishment of religion" -- and to do it all without being accountable to the American people or any elected official.
Before the Senate consents to investing Sotomayor with such sweeping authority, shouldn't it get some idea of how she would use it? As a matter of due diligence, don't senators have an obligation to learn Sotomayor's views on the legal and constitutional issues of the day? The stakes could hardly be greater, after all, or the public interest more intense. Would-be senators and presidents lay out their positions on current controversies, often in intricate detail. Shouldn't a Supreme Court nominee, who will never again have to submit to public scrutiny, be expected to share her thinking on important judicial and political questions? How else can the Senate, or the voters it represents, decide whether she belongs on the court?
Yet Sotomayor, like previous Supreme Court nominees, intends to tell the Judiciary Committee as little as possible about her views and intentions. In her testimony yesterday, she refused to express an opinion on contentious issues. "I come to every case with an open mind," she insisted. "Every case is new for me."
That isn't true, and everyone knows it -- just as everyone knew it when John Roberts and Samuel Alito were the nominees taking the "judicial Fifth" and politely declining to give straightforward answers when asked about their stands on key subjects. When Roberts was before the committee in 2005, then-Senator Joseph Biden voiced his frustration at "this kabuki dance we have in these hearings here," in which senators ask pointed questions and nominees give ultra-cautious replies, sidestepping any discussion of the convictions they would bring to the court.
Am I suggesting that nominees should telegraph how they would vote in any pending or probable case? Of course not. Should they make commitments to uphold or overrule specific previous Supreme Court decisions? No. But neither should they be allowed to turn the confirmation process into a grave and windy nullity on the grounds that that is what judicial impartiality requires.
The Supreme Court itself has said that such "impartiality" is illusory. "It is virtually impossible to find a judge who does not have preconceptions about the law," the court declared in a 2002 case. "Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so."
Instead of artfully dodging them, Supreme Court nominees should be required to discuss those preconceptions, and to give substantive answers when asked about their legal worldview or their analysis of constitutional issues. In the Wall Street Journal the other day, Georgetown law professor Randy Barnett suggested some questions: "Does the Second Amendment protect an individual right to arms? . . . Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?"
It is the Senate's responsibility to check and balance the vast clout of the Supreme Court, and it abdicates that responsibility when confirmation hearings become merely an elaborate ritual for rubber-stamping judicial nominees. Too much is riding on every nomination not to demand serious answers to serious questions. Kabuki has its place, and it isn't a Judiciary Committee hearing room.
Kabuki and Sonia Sotomayor
by Jeff Jacoby
The Boston Globe
July 15, 2009
(Jeff Jacoby is a columnist for The Boston Globe.)
Sotomayor's Supreme Charade
By INVESTOR'S BUSINESS DAILY | Posted Tuesday, July 14, 2009 4:20 PM PT
Supreme Court: Confronted with her disturbing racially oriented past statements, Judge Sonia Sotomayor had an excuse that only a liberal activist jurist could make: She meant the opposite of what she said.
Read More: Judges & Courts
Sotomayor's oft-repeated rhetorical riff on race is clear as a bell: "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."
She would sometimes leave out the "white male" part, but the remark was always a pointed disagreement with former Supreme Court Justice Sandra Day O'Connor's maxim: that a wise old man and wise old woman would agree on a judicial case's outcome.
Yet when the Senate Judiciary Committee's ranking Republican, Jeff Sessions of Alabama, quoted Sotomayor's own words to her, the response was basically: "I didn't mean what I said."
Kind of like how the Constitution doesn't mean what it says, as so many judges believe?
"What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome," Sotomayor told Sessions. "We have to recognize those feelings and put them aside."
Put it all together and it comes out something like this: The richness of a Latina's experiences will help her reach a better conclusion than non-Latinos because she will "recognize those feelings and put them aside."
That's tough to swallow.
Sessions reminded her that she also said "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate." As Sessions noted, that's "exactly opposite of what you're saying" now.
Her response: "We have to be open-minded," and "judge always that we're not letting those things determine the outcome," while recognizing that "some experiences are important in the process of judging, because the law asks us to use those experiences."
Asked if she stood by her statement, Sotomayor answered: "No, sir. I don't stand by the understanding of that statement that I will ignore other facts or other experiences, because I haven't had them."
It's doubtful that Sotomayor, with her abrasive reputation among those attorneys who've appeared before her, would tolerate anything resembling that kind of slipperiness in her own courtroom.
Similarly, Sessions confronted her with her Duke University remark that appellate courts are actually policymaking bodies.
Sotomayor claimed it was "very clear that I was talking about the policy ramifications of precedent, and never talking about appellate judges or courts making the policy that Congress makes."
In fact, the opposite is clear. It's too bad Sessions didn't ask her why she added, then, that "I know this is on tape and I should never say that because 'we don't make law.' I know." (The mocking tone of her voice provoked laughter from the audience.)
Supreme Court confirmation hearings have, sadly, become wars. And rhetoric is the ammunition.
Committee Chairman Patrick Leahy, the Vermont Democrat, for instance, began the hearings with questions about "the Tarzan Murderer case," a Harlem prosecution Sotomayor was involved with a quarter-century ago.
It has little to do with the job of a justice. Yet when Americans flipped on their TVs to watch the hearings, the first impression was misleading: the image of a tough-as-nails crime fighter more in tune with the Supreme Court's conservatives than its liberals.
Compare Vice President Joseph Biden, as chairman of the judiciary panel, beginning Judge Robert Bork's Supreme Court nomination hearings in 1987 by suggesting that Bork opposed the right "not to be forcibly sterilized by the state."
By claiming her "wise Latina" comment meant the reverse of the plain meaning of her words, Judge Sotomayor has blemished herself on the first day of questions.
If she dances around that, why should we believe her when she says "the task of a judge is not to make the law; it is to apply the law"?
BARRY SOETORO aka BARACK HUSSEIN OBAMA
He is not eligible to be
President of the United States
because he is not a Natural Born Citizen
as required by Article Two, Section One, Clause Five of the United States Constitution.
This is a fact REGARDLESS of
where he was born (Mombassa, Hawaii, Chicago, Mecca or Mars).
He is not eligible
because he was not born of
BOTH OF WHOM WERE UNITED STATES CITIZENS
at the time of his birth as required by the Constitution.
His father was a subject/ciitizen
of Kenya/Great Britain at the time of his birth and afterwards.
The FACT that he was not born of TWO US CITIZEN PARENTS is all that matters. The question of his birth certificate is a distraction (a distraction fostered by Obama’s supporters?) that ought not to occupy our time and resources.
However, it is possible that he is not a United States
citizen at all even if he was born in Kenya, as three witnesses have testified. The reason is because his mother could not pass her US citizenship on to her son because she did not live continuously in the United States for five full years after her fourteenth birthday as required by the US immigration law in effect during that period of time.
Check it out:
Also, an excellent introductory primer on Obama Presiidential Eligibility is to be found at:
His usurpation can only be corrected (1) by Congress through his Impeachment and Removal [something which will never happen in a Congress controlled by Pelosi/Reid], or (2) it can be
corrected by his resignation, which could happen if the public presssure on him to resign becomes great enough, or (3) by his removal by the United States Supreme Court affirming a Quo Warranto decision of the United States Federal District Court for the District of Columbia [which process Attorney General Eric Holder would never allow to even begin] or (4) by an amendment to the Constitution,
which will never happen because that again would require the agreement of a Congress controlled by Pelosi/Reid.
HERE IS THE QUESTION WHICH EVERY AMERICAN CITIZEN SHOULD BE ASKING HIS OR HER CONGRESSMAN AND SENATORS
“During the 2008 election, then Senator Obama published a statement at his website which said that his birth status was ‘governed’ by the British Nationality Act of 1948. Can you please tell me, and the American people, how a person governed - at birth - by British law, can be a natural born citizen of the United States and thus constitutionally eligible to be President of the United States?”
- Leo Rugiens