Category Archives: The Courts

Slumming It On The SCOTUS

Affirmative Action, Justice, Law, Multiculturalism, The Courts

SHE’S IN. SotoSetAsides Mayor has been confirmed as a United States Supreme Court Justice. Let the deluge of original commentary vis-a-vis the history-making nature of the event commence. (For one of my older columns, read “Media’s Judicial Jiu-Jitsu For Da Big Man,” or search the blog archive for the many debates we’ve had about Sonia.

At LRC.COM, my good friend Tom DiLorenzo, comments about her worldview (sealed with Tom’s vintage humor):

“The newest black-robed deity talks the language of pop-Marxism, the fundamental belief system of the man who appointed her. Sotomayor’s now-famous comment about how she possesses special and unique legal insights by virtue of being a “Latina woman” is an expression of what used to be called “Marxian class consciousness,” that is, one’s views are determined by the social class one belongs to. In the old days the relevant Marxian classes were the working and capitalist classes. After the worldwide collapse of socialism in the late ’80s/early ’90s, the pop Marxists of academe switched their tune to a different sort of class struggle: Now it’s the White Heterosexual Male Oppressor “class” versus all of the various mascot groups of the academic left, i.e., women, minorities, homosexuals, Latinos, the transgendered, etc., etc.

P.S. A friend who is married to a Latina woman makes good use of Sotomayor’s lingo whenever his wife asks him to perform various chores around the house: He tells her that as a Latina woman she has special skills in doing the chores, and should therefore do them herself.”

Update VI: Sonia A-Shout-Out-To-My-Mom Mayor

Affirmative Action, Constitution, Justice, Law, Left-Liberalism And Progressivisim, Private Property, The Courts

FIDELITY TO THE LAW. As you read through Sonia Sotomayor’s brief remarks delivered at her confirmation hearing before the Senate Judiciary Committee, consider first that Sotomayor swore “fidelity” to the law, not to the Constitution. Second, her alleged loyalty to the law should not assuage you, since this statement begs the question; it assumes that post-Constitution America holds an immutable notion of what the law is. Not so. (The law to Obama liberals, for example, must entail an admixture of empathy and life experience.)

But how unlike Sotomoayor is this writer. I’ve opened this post with a comment on logic and the law. Sotomayor began and continued her statement by extending the love, the gratitude, the humility to … blah blah… “who made this day possible.” Sonia gave a shout out to mom, bro, barack.

Her initial greetings and props are uncanny in their mundane, anti-intellectual, Oprah-worthy nature. I can just hear the mentors of Sotomayor—the people responsible for the bumper crops of mindless monolithic graduates emerging from US institutions—instructing her throughout the years: “be sure to emphasize your community service, the strong black or Hispanic women in your life, the diversity of your complexion and your career.”

The law according to our Latina: “my judicial philosophy … is simple: fidelity to the law. The task of a judge is not to make the law — it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’ intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.”

Much is made of hewing to precedent. George Bush “thought” that a judicial activist was someone who disobeys the President. Left-liberals believe a judicial activist is someone who reverses precedent, unless the precedent was established by an originalist Court.

Right thinking individuals know that striking down unconstitutional laws is not judicial activism. Judicial activism means 1) minting new rights not in the Constitution 2) striking down laws to comport with these freshly minted unconstitutional rights.

Update I (July 14): PULLING A JOE THE PLUMBER ON FRANK RICCI. The firefighter from New Haven, whose Constitutional case Sotomayor dismissed in a hastily scribbled paragraph, is being smeared by the likes of Dahlia Lithwick of Slate magazine. Watch and listen as Fox News’ Megyn Kelly interviews Ricci’s attorney, and asks: “Does this remind you at all of what happened to Joe the Plumber?” Ricci will be witness for the Minority at the hearings.

Update II: Sen. Grassley grills the woman—who is manifestly working with half the brainpower of a Justice Roberts—about property rights and unlawful “takings.” Her responses are poor.
The Volokh Conspiracy: “During the confirmation hearings today, Judge Sotomayor considerably misstated of the holding of Kelo v. City of New London, making the decision seem more limited than it actually was. In response to questioning by Democratic Senator Herb Kohl, Sotomayor refused to reveal her view of Kelo, a standard tactic used by previous Supreme Court nominees, but also incorrectly claimed that Kelo upheld a taking in an ‘economically blighted area.'”

I’m disgusted at the absence of a transcript to refer to. What impoverished reporting from the mainstream media. Can’t they get a court stenographer to offer a contemporaneous transcript?

During the tremendously important session on Kelo, an anti-abortion dunderhead began screaming. Here I am straining to hear how the woman excused her troubling ruling in Didden v. Village of Port Chester, when one of those abortion idiots disrupts a most crucial moment in the hearing: a discussion of government’s violation of property rights. But then what would a zealot like that know about property rights!? This sort of “Christian” is forever demonstrating for the glory of aborting full-terms people abroad and protecting fetuses not HIS stateside.

Update III: SEN. CHARLES SCHUMER is showcasing the wonders of his nominee by walking her through decisions that prove her fidelity to the rule of law and not to feelings. At one point Sotomayor says she’s entrusted with doing what’s in the common good, which she equates with following the law. I thought that following the law was supposed to provide justice and a remedy for individuals or other entities wronged. The common good?

Update IV: So Republican Lindsey Graham of the interminable war on terror, amnesty for illegals and many other Republican initiatives, can be bright when he chooses to. He has been asking poignant questions on judicial philosophy: originalism vs. living-document doctrine; is there a right in the Constitution that provides for abortion, etc. In the last probe, Sotomayour was permitted to fudge the question. Naturally, the Constitution provides for no right to abortion. If abortion is to be regulated, it must be at the state level.

I spoke to soon; Graham has gone back to his area of moral comfort: the amorphous, ever-morphing war on terror.

So far, Sen. Charles Grassley gets my vote for canniest politician. He asked good questions on property rights.

Update V: Let’s get back to that part of the hearings. If I understood Sotomayor’s testimony on the Didden Case, “where her Second Circuit Court of Appeals panel ruled that it was constitutionally permissible for a state to condemn property because the owners had refused developer Greg Wasser’s demand to pay him $800,000 or give him a 50% stake in their business, threatening to have the property condemned if they did not comply (via The Volokh Conspiracy)—then her decision against private property rights turned on a technicality.

Update VI (July 15): Judge Sotomayor and two other 2nd Circuit judges tried to bury their hastily written summary orders, “which represent the unanimous judgment of three appellate judges,” in the “discrimination suit by a group of [white] firefighters against New Haven, Conn.” As Stuart Taylor Jr. of National Journal tells it, this sneaky act might have prevented the case from coming before the SCOTUS. Fortunately, Judge Cabranes, “a Clinton appointee of Puerto Rican heritage — and once a mentor to [Sotomayor] — … published a blistering June 12, 2008, dissent,” thus bringing “the case forcefully to the attention of the Supreme Court.”

Read on.

Sonia Sotomayor Versed In Classics … Kiddie Classics

Affirmative Action, Education, Human Accomplishment, Intelligence, Law, The Courts

2 Replies

SotoSetAsides Mayor, whose confirmation hearing starts on Monday—and who’ll be confirmed—is bound to be a judicial wrecking ball. Or, she may prove to be just the dim liberal bulb the doctor ordered.

In case you’re still looking to the Republicans to make a principled stand on anything, CNN reports that they “have promised a fair but thorough hearing … [only] A few have said they intend to vote against her nomination when it reaches the full Senate.”

As always, national treasure Pat Buchanan puts things into perspective by exposing the fraudulent “Ivy-League” institutions that have disgorged Soto So-and-So:

“By her own admission, Sonia Sotomayor is an ‘affirmative action baby.’

Though the Obama media have been ballyhooing her brilliance – No. 1 in high school, No. 1 at Princeton, editor of Yale Law Review – her academic career appears to have been a fraud from beginning to end, a testament to Ivy League corruption.

Two weeks ago, the New York Times reported that, to get up to speed on her English skills at Princeton, Sotomayor was advised to read children’s classics and study basic grammar books during her summers. How do you graduate first in your class at Princeton if your summer reading consists of ‘Chicken Little’ and ‘The Troll Under the Bridge’?

In video clips dating back 25 years, and now provided to the Senate Judiciary Committee, Sotomayor, according to the Times, even calls herself an ‘affirmative action product.'”

'Wise Latina' Loses

Affirmative Action, Constitution, Individual Rights, Justice, Law, Race, Racism, The Courts

Sonia Sotomayor’s Latina wisdom has come back to hurt and haunt her in the case of the New Haven Honkies, whose discrimination case she dismissed. So too is the Supreme Court’s blah blah Bader Ginsburg’s dissent noteworthy for its unwise quality. At least neither one of these Delphic ditzes carried the day. Reports the Christian Science Monitor:

“The US Supreme Court ruled 5 to 4 on Monday that the Connecticut city violated Title VII of the Civil Rights Act of 1964 by using race as the key criterion in refusing to certify a group of white and Hispanic firefighters for promotion.

City officials said they were afraid that if they promoted the white and Hispanic firefighters but no African-American firefighters, the city would be subject to a lawsuit by black firefighters. The high court disagreed.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote in the majority opinion.

The high court’s action overturns the 2008 decision of a three-judge appeals-court panel that included Judge Sonia Sotomayor, President Obama’s nominee to replace retiring Justice David Souter.

The New Haven firefighters case – and the Supreme Court’s view of it – are expected to play an important role in Judge Sotomayor’s Senate confirmation hearings next month.

The judge is believed to be a strong supporter of New Haven’s legal position in the case. In addition, it is unclear why her three-judge panel initially handed down a brief, unpublished, unsigned summary order disposing of the case without offering even cursory legal analysis.

Beyond the Sotomayor nomination, the decision is important because it provides guidance to employers that they may continue to rely on objective, work-related exams without facing a discrimination lawsuit from those who do not pass the test.

At the heart of the case were two competing provisions of Title VII of the Civil Rights Act. One section bars discriminatory treatment based on race or ethnicity. A different section urges employers to avoid making job-related decisions that create a disparate impact on minority workers.

If, for example, a city conducts an exam to determine which workers will be promoted and then no African-Americans are identified for promotion – that disparate impact on black workers is presumed to be illegal. The city is expected to correct the situation.

But the law also forbids employers from using race as the sole or primary criterion for hiring or promotions – including decisions that disfavor white employees because of their race.

In this way, New Haven found itself in a Catch-22.

Justice Kennedy and the other majority justices resolved this dilemma by ruling that New Haven needed a “strong basis in evidence” to justify its discrimination against white and Hispanic firefighters. He said a mere statistical disparity alone could not amount to the strong evidence necessary.

Kennedy added that once a fair test procedure is set, employers may not invalidate the results based on race or ethnicity. “Doing so … is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,” he wrote.

In a dissent, Justice Ruth Bader Ginsburg said New Haven had not engaged in illegal discrimination against the white firefighters because they had no vested right to a promotion.

She wrote that the majority justices ignored “substantial evidence of multiple flaws in the tests New Haven used.” She added that the court failed to acknowledge better tests used in other cities.

“The court’s order and opinion, I anticipate, will not have staying power,” she said.

[SNIP]

From “Beware of ‘Absolut’ Libertarian Lunacy”: “By petitioning the courts, when they should go gentle into that good night, white men like Ricci are seeking equality of results much as blacks do through coercive civil rights laws. … Ricci was wronged for excelling. He is not petitioning for special favors; he’s petitioning against them. If anything, Ricci is asking only that the city accept inequality of outcomes; accept that not all are created equal—and that he, more so than his less-qualified colleagues, is most suited to fighting fires and dousing departmental flames.”