Tuesday, May 26, 2009

Sonia Sotomayor: The Sacrificial Lamb

President Obama announced his nominee for United States Supreme Court by introducing Sonia Sotomayor. Sonia Sotomayor is an U.S. Court of Appeals judge in the Second Circuit. In response to her nomination, the pundits grasped onto her being the first Hispanic to be nominated to the highest court in the land. Who cares!! Skin color, ethnic background, and sex are not criteria to be used when nominating a Supreme Court Justice.

Currently Justice Ginsburg is the only female while Justice Thomas is the only non-white Justice on the bench. Many have looked for President Obama to appoint a more diverse nominee to the bench. With Sonia Sotomayor he gets both the female and ethnic box checked. Over the summer, Miss Sotomayor will be put under the spot light by both parties prior to being voted on by the Senate.

Jeff Rosen, writer for The New Republic, in his story “The Case Against Sotomayor” published May 4, 2009, attempts to look at all sides of the potential nomination of Sotomayor. Rosen reports that “former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness.” My hope is that she does not use the bench as a pulpit which is something many judges do attempt. Rosen goes on to report, when talking about former law clerks of judges on the Second Circuit or federal prosecutors in New York (most Democrats); many are concerned “about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.”

If she is intellectual enough to provide “counterweight” to conservative voices on bench now, why would President Obama nominate her? One concern I have is a quote, if true, in Rosen’s article by a former clerk of the Second circuit of “she has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” If Sotomayor lacks the ability to ask probing questions then she is definitely not Supreme Court material.

Sen. Schumer in a letter to President Obama stated, “It’s long overdue that a Latino sit on the United States Supreme Court. Sonia Sotomayor and Ken Salazar are two candidates who would make outstanding justices. They have top-notch legal minds, years of experience, moderate approaches to the law, and would make history by being the first Latino on the court.” While I agree that having a diverse look to the Supreme Court is appealing, but we cannot afford it to be done if the candidate does not understand the limited role of a Supreme Court Justice.

Kidding or not, Sotomayor is caught on tape saying, “court of appeals is where policy is made” when addressing potential law clerks in 2005. She did later add that she was not promoting or advocating the concept. It is these types of slips that can give real insight into true belief of the words being said. The interesting part will be if liberals will be okay with her “moderate” view of the law since many liberals are looking for more influence for their cause on the bench.

President Obama’s introduction read like a campaign stop. Earlier I posted that Secretary of State Hillary Clinton will be the next Supreme Court Justice and I have not given up on that yet. It will be interesting to see how Sotomayor defends her position when she upheld the reverse discrimination case of white and Hispanic firefighters in New Haven, Conn; Ricci v. DeStefano. It will be this interpretation of law that will start the unraveling of Sotomayer and pave the way for Clinton. Previously I spoke on the reverse discrimination case by the New Haven firefighters. Please read further there as this case will become a central component to whether Sotomayor is confirmed.

Senate Minority leader Mitch McConnell said in a statement, “Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.” This examination of her record will bring to light the reverse discrimination case of New Haven firefighters as well as the six decisions she made that saw five reversed and one where the court disagreed with her reasoning.

A lot will be made of her comments and case load. One in particular that will see a lot of attention, beside New Haven, is the 1993 case where Sotomayer, as reported in Foxnews article “Sotomayor’s Judicial Record could be Battlefield for Critics, Advocates”, “threw out evidence obtained by police in a drug case, because a detective lied to obtain the search warrant – prosecutors agreed to a plea bargain. However, during sentencing Sotomayor made controversial statements by criticizing the five-year mandatory sentence, calling it an ‘abomination’ that the defendant did not deserve.” Due to a failed search warrant the evidence was thrown out but for her to criticize the mandatory sentence is the type of empathy that many will say does not exist at the Supreme Court level.

The Supreme Court is to interpret law based on the guidelines and amendments in the United States Constitution. Not to interpret law based on upbringing, life experience, or empathy for the excused.