July 13, 2009
By Robert Alt
Tomorrow, the Senate begins confirmation hearings for Sonia
Sotomayor's nomination to the Supreme Court. Lawmakers have a duty
to ask tough questions and to seek real answers before confirming
her to the highest court in the land.
Throughout her career, Judge Sotomayor has made statements and
issued decisions that raise grave concerns about her impartiality,
her judicial philosophy, her views on ethnicity and gender, and her
perspective on issues ranging from gun Rights, to property rights,
to U.S. courts' reliance on foreign law. With that in mind, here
are three troublesome cases that will highlight the hearings:
Second Amendment. Everyone knows about the 32
words Judge Sotomayor uttered about the "wise Latina woman," but
what about the 11 words? That's how many she dedicated to
determining whether a state law prohibiting weapons possession
involved a fundamental right. She held that the Second Amendment
doesn't apply to the states -- a ruling that would permit local
governments to completely ban gun possession if they so desire.
Sotomayor's defenders have suggested that this case is an
example of judicial restraint, because she relied upon 19th century
cases in deciding that weapons could be outlawed. But the Supreme
Court just last year said those cases do not meet the requirements
of current law. This defense also ignores that Sotomayor did not
cite a single case in her decision, just dismissing seven pages of
analysis that the Ninth Circuit conducted to reach the conclusion
that the right to bear arms is a fundamental one, deeply rooted in
our nation's history.
By cursorily addressing the fundamental Rights issue, far from
being restrained, her panel offered the most extreme, anti-gun
Rights decision issued by a federal court since the Supreme Court
affirmed that the Second Amendment guarantees an individual right
last year. While one other court has found that the Second
Amendment doesn't apply to the states until the Supreme Court says
that it does, no other court has issued such a broad and
unsupported claim on the question of fundamental rights.
Felony Voting. A group of felons, including an
inmate serving a life sentence for killing two police officers,
brought a lawsuit challenging the New York law that prohibits
felons from voting, claiming that it violated by Voting Rights Act
because it resulted in denial of the right to vote "on account of
race." The Second Circuit found that the Voting Rights Act did not
encompass felony voting prohibitions. The court offered a reasoned
opinion, noting that the Fourteenth Amendment expressly approves of
states prohibiting those who participated in "rebellion, or other
crimes" from voting, and citing to legislative history showing that
Congress did not intend the Voting Rights Act to effect felony
Judge Sotomayor, however, dissented. In a brief, three-paragraph
opinion, she asserted that the application of the Voting Rights Act
to felons was not a complex question, that it unambiguously applied
to felony voting, and that New York's law should therefore be
subjected to a results test.
One wonders, if it is so simple, why has all but one federal
court of appeals to hear this issue disagreed with Judge Sotomayor?
Hers is a particularly extreme position, one that reads the Voting
Rights Act far too broadly, divorced from its history and
constitutional moorings, and one which would literally require
voting booths in Sing Sing.
New Haven Firefighters. On the last day of
term, the Supreme Court reversed Judge Sotomayor's panel opinion in
the New Haven firefighters' case, in which white firefighters were
denied promotions because the city determined that an insufficient
number of minorities passed a racially-neutral promotions
It's bad enough that she decided the case incorrectly -- indeed,
all nine justices suggested that they would not have granted
judgment for the city at the stage in the proceedings that she did.
What makes it worse was her dismissive treatment of the claims. Her
panel disposed of the case in a single paragraph, without even
addressing the merits, in what appears to have been a feeble
attempt to avoid future review. Fellow Second Circuit Judge and
Clinton appointee José Cabranes expressed deep concerns
about how Sotomayor's panel handled the case, noting that its
"perfunctory disposition rests uneasily with the weighty issues
presented by this appeal."
Again, the White House has attempted to defend the case as an
example of judicial restraint -- one in which she was just
following precedent. But Judge Cabranes, in arguing that the full
Second Circuit should have reviewed the case, noted that the case
raised issues of "first impression" -- that is, questions never
decided before by the Second Circuit. So much for just following
This case, taken with the Second Amendment case, demonstrate a
disturbing trend in which Judge Sotomayor has been extraordinarily
dismissive of claims with which she apparently disagrees. It is
enough to make one wonder if she was acting upon her previously
suggestion in which she doubted that judges could put aside
prejudices "even in most cases," and suggested it would be a
"disservice both to the law and society" to do so.
The Senators must demand serious answers to these serious
questions. The American people and the Constitution deserve at
least that much.
First Appeared on the New York Post
Tomorrow, the Senate begins confirmation hearings for Sonia Sotomayor's nomination to the Supreme Court. Lawmakers have a duty to ask tough questions and to seek real answers before confirming her to the highest court in the land
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