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July 13, 2009

Sotomayor's Full Court Press

By

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 disenfranchisement statutes.

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 examination.

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 precedent.

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.

Robert Alt is a senior Legal fellow and deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation (heritage.org).

First Appeared on the New York Post

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