# News Nominee: Sonia Sotomayor

1. May 26, 2009

### signerror

Obama Selects Sotomayor for Court
Interesting opinions - some disturbing to me:

Sotomayor’s Notable Court Opinions and Articles
What? I don't understand this at all - if it's a Constitutional right to bear arms, how can that be infringed by state governments? By this reasoning, you could have all 50 states ban guns categorically, without "infringing" on 2nd amendment rights.

Or: what possible reasoning says the 2nd amendment only applies to the fed, and not the 1st? This exact reasoning would say that Tinker v. Des Moines (classic free speech case) is obviously wrong, because free speech "only applies to the fed": schools, regional government can ban speech all they want. You could have states ban political speech, which is obviously ridiculous. But I'm not claiming a slippery-slope: I'm claiming the reasoning is exactly the same in each. So either we have no free speech rights w/respect to state governments, or there is an intellectually-dishonest double standard.

Another interesting decision:
Sotomayor wrote:
http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=2

Outright racism! I'm disgusted that a government employer can deny promotion, explicitly on a person's race as the sole deciding factor, and have that validated. This doesn't even fit the conventional (if tenuous) affirmative-action context where, there are equally qualified candidates of different ethnicity/gender/orientation applying for a position: in this case, they are clearly not equally qualified. Race is the deciding factor, and qualifications are systematically ignored.

2. May 26, 2009

### Flat

Here's a quote from Romney
http://politicalticker.blogs.cnn.com/2009/05/26/romney-sotomayor-nomination-troubling

To be honest I know nothing on Sotomayor, so once I get some free time to read about her more indepth, i'll comment.

3. May 26, 2009

### Chi Meson

Who cares what Mitt Romney has to say on Sotomayor? Romney is one of the GOP conservatives who has been prepped for the past several weeks to come out swinging no matter who was nominated. It's the way politics goes, of course, and it's the same view from both sides of the fense, I'm sure. But really, Romney is not going to make any reasoned, objective observation. The quote he put in about "where policy is made" was from a line where Sotomayor clearly misspoke during a speech at a Law school recently. She immediately backtracked from that statement, but hey fodder is fodder.

4. May 26, 2009

### CRGreathouse

Concerns about activism notwithstanding, conservatives should be pleased that Obama didn't nominate a younger, harder-left judge. They certainly have the numbers for that.

5. May 26, 2009

### ExactlySolved

Nominating partisans to the supreme court sucks, no matter whose side your on (and I'm on Obama's side). Activist partisans are even worse.

It's like an arm's race, ...and then Bush nominated partisans so Clinton nominated partisans so Bush nominated partisans so Obama nominated partisans. Obviously it is just as difficult to trace the ... backwards in time as it is to trace (...chicken then egg then chicken) backwards. It doesn't matter who started it, it matters who will end it. And it looks like that won't be Obama, unfortunately for all of us.

6. May 26, 2009

### Chi Meson

Conservatives would have been much more pleased if the nominee had truly been a hard-left activist. This would have given them more ground in the next election cycle.

7. May 26, 2009

### Staff: Mentor

Agreed....

On the 2nd amendment, I don't understand how that can be justified in light of the 14th amendment. Sounds like she's thumbing her nose at it.

In the quote about the racial discrimination, it sounds like she is saying that the law takes precedence over the constitution! And saying that the law says it isn't racism so it isn't racism? Would she have ruled that 'separate but equal' really was equal because the law said it was?

Very odd rulings and logic.

8. May 26, 2009

### Staff: Mentor

Well that and they might have been able to torpedo the nomination.

9. May 26, 2009

### LowlyPion

I'd say after nominating Harriet Miers the Republicans have little standing to be fussing about credentials.

(Then of course there was Haynsworth and Carswell that Nixon tried to slip on the bench. And later Reagan offered the unfortunate Bork.)

10. May 26, 2009

### Gokul43201

Staff Emeritus
As weird as it sounds, there appears to be precedent for this, and Sotomayor et al refer to that precedent.

http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=1

Quoting from Judges' opinion:

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present
the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.​

I find the New Haven firefighters case more troubling, but having not yet read though it properly, will hold my judgment.

11. May 26, 2009

### Staff: Mentor

Has anyone anywhere "fuss[ed] about her credentials"? The only "fussing" I see is about her activism.

12. May 26, 2009

### lisab

Staff Emeritus
Well I'm watching Pat Robertson on Hardball right now, questioning her intellectualism. I'll get a link when it comes up...I'm watching it live now.

Dang, she was Phi Beta Kappa out of Princeton...not only that, but *the* top student...what better evidence of intellectual prowess does she need?

13. May 26, 2009

### LowlyPion

So what if she is an activist? There's nothing wrong with that. The court could use a little empathy. I'd say maybe it needs a little liberal activism after suffering under the boot of Conservatives the last few years. Without activism blacks might still have to drink from their own water fountains and go to their own segregated schools. There might not have even been a President Obama.

Besides if you want to strictly construct the Constitution, it doesn't prohibit activism. It doesn't forbid empathy.

Republicans lost the election. Maybe they ought to accommodate themselves to this reality a little more gracefully?

14. May 26, 2009

### LowlyPion

Pat Buchannan. Natural confusion. Both ideologues.

15. May 26, 2009

### lisab

Staff Emeritus
:rofl:

Yup, you're right, haha, my mistake .

16. May 26, 2009

### CRGreathouse

They don't have the political capital to do that.

17. May 27, 2009

### swat4life

And people claim there is no discrimination any more in America. Can you imagine someone of a different sex or cultural background having her intelligence question with these credentials?

This is what makes my blood boil like a vineyard lobster. Pat Buchanan on Hard Ball had the nerve to say "I question her intelligence".

People have a problem with this statement:
"Our gender and national origins may and will make a difference in our judging," - Sotomayor

There's empirical evidence out of RMIT University (Australia) and Vanderbuilt University to support this statement, so how is it somehow "wrong"?

What I don't get is why this is an issue - really. Why are we so behind the rest of the Western World when it comes to certain things?

Countries like Sweden have an actual cabinet post dedicated to gender and human rights equality and justice:
http://www.sweden.gov.se/sb/d/2184 [Broken]

Finland elected a SINGLE, UNMARRIED MOTHER as head of state - not just once but twice (and she enjoyed record high approval ratings).

Finally, with regard to the firefighter case. It has occurred to me that this is an emotional not logical issue for some. And, like most emotionally charged issues, it proves challenging to separate the facts from the fiction.

I would encourage any/everyone with an open mind to INVESTIGATE THE CIRCUMSTANCES rather than relying on mass-media interpretations of the facts.

Of course, for those who would prefer to not see her nominated, there's no interest in that - to each his own.

However, what troubles me is that the less intellectual curious will rely on the Rush Dumbos of the world and Fox/Faux News rather than a balanced interpretation of the idiosyncrasies involved with the case.

The Sotomayor Mystery
Why didn't she explain herself in this year's big race case?

Judge Sonia Sotomayor is smart and sharp, and her formidable track record on the bench should put to rest any lingering doubts that she isn't. (Speaking of which: Why was the left, or at least the center, criticizing one of its own?) But there is a mystery in Sotomayor's recent history: a brief, unsigned opinion in the difficult race case now before the Supreme Court, Ricci v. DeStefano. Sotomayor punted when Ricci came before her, to such a degree that she raised more questions than she answered.

Ricci is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws. In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.

In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.

Faced with these complaints, which translated into both political and potential legal fallout in a city that is nearly 60 percent African-American, New Haven withdrew its test. But that fueled an intense and also understandable frustration on the part of the white firefighters who'd spent time and money on test-prep materials. They'd succeeded by scoring high, only to be told that now their investment counted for nothing. Frank Ricci is a 34-year-old "truckie"—he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won. Ricci and 19 other firefighters sued New Haven, alleging reverse discrimination, in light of Title VII and also the 14th Amendment's promise of equal protection under the law. They said that New Haven shouldn't have thrown out the test.

The district court judge who heard Ricci's case ruled against him and his fellow plaintiffs. They appealed to the 2nd Circuit, the court on which Judge Sotomayor sits. In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis. As Judge Jose Cabranes put it, in protesting this ruling later in the appeals process, "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed. The court heard argument in Ricci in April. New Haven didn't fare well.

The high court's decision in the case will come in June, before Sotomayor's confirmation hearings. The problem for her will not be why she sided with New Haven over Frank Ricci. The four liberal-moderate justices currently on the court are likely to agree with her, in the name of preserving Title VII as a tool for fair hiring. There's even an outside chance that Justice Anthony Kennedy will follow along. The problem for Sotomayor, instead, is why she didn't grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?

http://www.slate.com/id/2219037/

Last edited by a moderator: May 4, 2017
18. May 27, 2009

### Ivan Seeking

Staff Emeritus
An interesting observation wrt the SC: Given the current nomination, the court will consist of 6 Catholics, 1 Protestant, and 2 Jews.

19. May 27, 2009

### misgfool

Who by the way was pro-Soviet, pro-DDR and is still anti-American. Irony of the ratings is of course that during her reign a new era of poverty is approaching Finland. Yes, there is a drawback in social democracy. Women hijack power. Also they are not the most competent ones.

20. May 27, 2009

### wildman

I like her. She is sometimes liberal and sometimes conservative. That shows independence of thought. She also sticks to the law. Yes, she sometimes has said otherwise, but one needs to look at what a person does, not what they say and her rulings have been supported by law.

Basically, the Republicans have to reach to oppose her.