Obama’s Supreme Error in Judgement
With David Souter, 69, prepared to step down from the Supreme Court at the end of the current session, President Obama was tasked with finding a replacement justice. And while there were a great many compelling candidates like Alex Kozinski or John E. Jones III, who though both right of center, have far more reasoned judicial philosophies, as well as superior records with respect to previous verdicts. And especially since Souter was appointed by George Bush Sr. during his time in power, this seeming shift right would just be a historical correction from the president who so often claims to be interested in cooperation across the political spectrum (though his actions thus far suggest it is merely hollow rhetoric). Instead, Obama has chosen Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals, distinguished more by her Latina heritage than by her record.
Undoubtedly, Sotomayor looks impressive at first glance, in that she graduated at the top of her class at Princeton University, and then when on to graduate from Yale Law, where she was editor of the Yale Law Review. But that’s about where her merits as a potential Supreme Court justice end. Cases such as Ricci v. DeStefano, Pappas v. Giuliani, and Doninger v. Niehoff make evident that her rulings either willfully disregard the Constitution, or hinge on indefensible misinterpretations of it.
Let us begin with Ricci v DeStefano, the case most likely to trigger controversy as her nomination is considered (by the Republicans that is, since the Democratic party and most of the media seems to have already okayed her). In it, the city of New Haven, Connecticut was bound by union contracts with respect to the fire department, mandating that exams were to be used as the determinant for promotions. Specifically, the individual chosen for promotion had to receive one of the top three scores on the exam. Black candidates however performed inadequately, with a failure rate twice that of their white cohorts, meaning that none were among those first eligible for promotion after this new advancement exam was rolled out in 2003. This resulted in the city’s independent exam review board questioning whether it was a racially bias exam that could not be certified as valid in determining who would receive promotion. A competing test development company stated when asked that he believed the exam was not so problematic as to be illegal or outright invalid, and veteran firefighters noting that the exam was rather similar to what they had taken in the past. So, logically speaking, the exam ought to have been certified, after which the promotions would be issued. However, the review board was split 2-2, leaving the exams uncertified. A group of Caucasian and Hispanic firefighters who had scored well enough to earn the promotions in question thus opted to sue, claiming that New Haven’s actions violated Title VII and the Equal Protection Clause. Though she did not author an opinion in this case, we must recall that when first tasked with rendering a verdict, Sotomayor voted to uphold the District Court ruling, which sided with the city against the hard-working fire fighters on the basis of their skin color.
Pappas v. Giuliani, where her involvement is quite a bit more clear, is perhaps even more disturbing. That case deals with Thomas Pappas, a New York City police officer who was fired from his job because, outside of the office, on his own time and with his own money, he mailed hate material to an assortment of organizations that had first mailed his solicitation requests. Also important to recall is that he did so anonymously, meaning that there was an intent to avoid creating the sort of negative public image that might inspire questions about his biases with regard to police work. Further, he asserted, and this cannot be disproved, that his actions were a form of political protest. Thus, being that the material he sent out was not unlawful in the first place, that it was purposeful political speech, and that he did so without involving his employer in any way, one should think that the Court would side with Pappas, who even if genuinely racist and of poor character, has done nothing that ought to have rendered his at odds with law, or resulted in the termination of his employment in a country where there are substantial limits on the grounds over which an employee may be terminated. But Sotomayor and her liberal ilk disagreed, ruling against Pappas at the expense of the political expression rights.
Of course, her utter contempt for the First Amendment and its promises of free speech rights does not end there, as shown by Doninger v. Niehoff. I’ll spare you the overwhelmingly long version of this story, instead directing you to an article on the matter by Mark Kernes if you are so inclined. Put briefly, this was a case of Avery Doninger, a student government member at Lewis Mills High School, using some off-color language on her livejournal to describe her feelings about certain school administrators that were making every effort to impede or cancel a “Jamfest” event that the students had (with prior school authorization) been planning for quite some time. While this was going on, Doninger was up for re-election, seeking the position of Senior Class Secretary, having previously held the equivalent position for her class junior year. Having failed to display the “good citizenship” expected of candidates running for positions in student government (by using the aforementioned off-color language on her livejournal), Doninger was denied administrative endorsement, ensuring that she would be left off of the ballot, and all but guaranteeing that she would lose the election. But a funny thing happened. The students, who were impressed by her past performance and her willingness to advocate on their behalf, voted overwhelmingly for her. In fact, she won a substantial 2/3rds of the vote. But the school, so concerned about a student using the word “douchebag” on a livejournal entry that they felt the need to attempt (unsuccessfully) to silence Doninger, proceeded to disregard the results of the election and give the position to the second place candidate. And Sotomayor agreed with their actions. In the unanimous court opinion, of which she was a signing justice, Tinker’s principal that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” was acknowledged, but then rendered irrelevant by what followed. Instead, she regarded the school’s mission (something which, I might add, had no constitutional basis to exist) of imparting a “proper respect for authority” as being more critical than allowing for dissent. That the somewhat crude language was used outside of the school, and in the context of political dissent over the decisions of those in power at the school, was deemed inconsequential. Not only then was free speech dealt a serious blow, but the verdict seems to suggest that dissent is improper and should be disallowed if it is at odds with respecting the authority of people who have done little if anything to earn said respect.
And of course in her past there are a number of other disturbing verdicts, though none as important as the above. Litmus test for appointments or not, a judge who consistently makes irrational, freedom-limiting decisions should, on that basis alone, be rejected as a potential candidate for the forthcoming vacancy. But, even were one sympathetic to her politics, it is not otherwise clear that she belongs. Disregarding the absurd controversy surrounding her comment that judges make policy from the bench (which is a provable fact, and thus does not reflect something meriting further review by those of us opposed to her nomination), there are questions being raised about her fitness for the position. Famous legal scholar Jonathan Turley said of her nomination, “My main concern is the lack of intellectual depth in her past opinions. I have read about 30 of the opinions and they do not support the view that she is a natural pick for the Court. She is without question a historic pick — like Thurgood Marshall. However, Marshall was not a lasting intellectual influence on the Court.” And his point is well taken. Having the right heritage and an atypical success story does not render qualified. But if asked, Sotomayor seems to feel strongly that such details do make a difference, for speaking at UC Berkeley she said, “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.” That of course is a reflection of the “empathy” that this token candidate is expected to bring with her. That’ll mean a great win for identity politics, and an even greater loss for the Constitution and American individualism.
What Others Are Saying
Bench Memos: Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.
Cato @ Liberty: In nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.
Crunchy Con: Given that we were certain to get a liberal justice out of Obama, I suppose one has to take comfort in knowing that Obama made a quota pick too, and did not choose a liberal justice who can match intellects with Roberts and Scalia.
JammieWearingFool: Great News: Obama Picks Radical Hack for Supreme Court.
Libertarian Party (USA): By nominating Sonia Sotomayor, Barack Obama has made it clear he prefers an activist for his personal causes over a rational interpreter of law.
Michelle Malkin: Identity politics triumphs.
Patterico: Sotomayor will almost certainly be confirmed, but she does appear to be one of the more leftist of the nominees that had been under consideration. Empathy über alles, dontcha know. Republicans should (emphasis on should) be able to have a field day showing how she’ll move the law to the left.
If you liked this post, you may also enjoy these recent articles:
Posted on May 26, 2009, in USA and tagged Barack Obama, Caleb Posner, Constitution, David Souter, Doninger v. Niehoff, First Amendment, free speech, Judicial Activism, Livejournal, Pappas v. Giuliani, Racial Preference, Ricci v DeStefano, Sonia Sotomayor, supreme court, Thurgood Marshall, Yale Law Review. Bookmark the permalink. 1 Comment.