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20 years

hen Resident Barack Hussein Obama named one of the most arrogant magistrates on the federal bench as his pick to replace retiring Associate US Supreme Court Justice David Souter, the media jumped on the off-key liberal choir by calling his choice "inspiring" even though the US Supreme Court she wants to join overturned 60% of her rulings. As Obama picked 2nd US Circuit Court of Appeals magistrate Sonia Sotomayor on Wed., May 26, he referred to the far left jurist as a "moderate"—not because she made centrist decisions, but simply because she was brought to the federal bench by a Republican, George H.W. Bush (whose taste in judges, except for Associate Justice Clarence Thomas, seems to be seasoned with a left-handed salt shaker. Sotomayor served as a former New York City Assistant District Attorney for five years (i.e., a "grunt" lawyer with no decision-making authority or opportunties to advance in the DA's office) before entering into private practice in New York. With absolutely no judicial experience, Sotomayor should never have been on anyone's radar screen for a federal judgeship—most certainly not on a Republican's.

In point of fact, she wasn't. She was actually on a Democrat's radar screen during the last year of Bush-41's single term in office. Just as liberal Republican former New Hampshire Governor//Bush-41 Chief-of-Staff John Sununu picked Souter, liberal New York Democratic Senator Daniel Moynihan was allowed to pick two of seven federal judges in a compromise to keep Bush-41's judicial appointments from being filibustered. Knowing her pedigree, Moynihan picked Sotomayor to fill the bench on the US District Court for the Southern District of New York. Thus, Obama claims that a Republican president picked her is not true. She may, in fact, be the first federal court judge in US history picked by a US Senator and not a President.

And, of course, that's why Marxist Democrats have fast-tracked her. Sotomayor, like traditional liberals, embraces identity politics which incorporates the principles of categorical representation (minorities are best represented by minority judges). Even more to the liking of the far left, she is an extremely radical judicial activist who has made it clear that in her view "law is made at the appellate level" of the federal judiciary. Sotomayor believes that federal judges have the right, through reinterpretation, to rewrite the laws of the land. In Sotomayor's view, the Constitution and the Bill of Rights no longer fit the needs of the societal architects of an evolving world.

Sotomayor has apparently never taken a good look at at the statute of Lady Justice. She is blind to portray the legal concept of absolute neutrality in the dispensing of justice. The oath taken by nominees to the high court affirms what must be complete impartiality: "I (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me, God." If justice is not blind, then our federal court system will quickly become nothing more than the administrative arm of the Oval Office that metes punishment to those who challenge the edicts of the master in the White House.

When Bill Clinton nominated her for a seat on the US Court of Appeals for the 2nd Circuit in 1997, the Republicans blocked her nomination for a year. In 1998, in what some insiders believe was another back room swap, the Republicans approved the Sotomayor nomination for the appellate court, and the Bronx time bomb began ticking. The time bomb that is ticking is the 2nd Amendment. On June 28, 2008 the US Supreme Court ruled on the case of District of Columbia et al v Heller in which the high court overturned the District's ban on the private ownership of guns, holding that the 2nd Amendment protects an individual's right to posses firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when needed for self-defense, violated that right and was, therefore, unconstitutional.

Since June 24, 2008, the right of the American people to own and legally possess firearms became settled law. Or rather, it should have. However, to the far left, which needs to disarm America before it can risk erasing our national borders and joining the stateless global economy, the 2nd Amendment is anything but settled law since judicial activists like Judge Sotomayor are frantically attempting to divorce the Constitution from the 14th Amendment—which binds the States to the Bill of Rights.

Since the Supreme Court ruling on DC v Heller, two appellate courts have heard gun cases. The courts? The 2nd Circuit and the 9th Circuit. Six of about 170 federal judges have ruled on gun rights since the Heller decision last June. Of those six judges, three agreed with the Supreme Court that the 2nd Amendment applies equally to the States, three did not. One of the appellate courts was the 2nd Circuit Court of Appeals, the other was the 9th Circuit. Even the 9th Circuit, the most liberal court in the land, understood that the 14th Amendment binds the Bill of Rights to the States. A Bill Clinton-appointed and a Jimmy Carter-appointed judge on the 9th Circuit ruled in favor of the right of citizens to own firearms. In the other case, Maloney v Cuomo (which has been appealed to the US Supreme Court), two of the three judges on the 2nd Circuit ruled that New York's ban on martial arts weapons (a nunchaku) did not violate the 2nd Amendment.

In writing the majority opinion in Maloney (554 F.3d 56 [2009]), Sotomayor stated that "...the Second Amendment does not apply to the States and therefore impose[s] no limitations on New York's ability to prohibit the possession of nunchakus. It is settled law," she continued, "that the Second Amendment applies only to the limitations the federal government seeks to impose on this right. Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate. Instead, we hold that the Second Amendment's right to keep and bear arms imposes a limitation only upon the power of congress and the national government, and not upon that of the State." The far left, which has argued for years that the 14th Amendment tied the Bill of Rights to the States, now argues the reverse.

History in the making?
The media is claiming that Obama made history for nominating what the press has dubbed "the first Hispanic nominee to the Supreme Court. In fact, she is not. The first Hispanic Associate Justice to the Supreme Court was Benjamin Nathan Cardozo. Justice Cardozo was appointed by President Herbert Hoover and was confirmed March 14, 1932. He assumed the seat held by Oliver Wendell Holmes, Jr. When Holmes turned 90, he retired from the bench on January 12, 1932. His seat sat empty for two months until it was assumed by Cardozo. (By the way, in a nation of immigrants, there was no fanfare and whooping hurrahs that we put a Hispanic on the bench. Cardoza was simply an American.)

Clearly, the Election of 2008 was a history-making event. But not because we'll see a Hispanic on the Supreme Court for the first time. Where she does qualify as "first" is that, if confirmed, she will be the first US Supreme Court Justice without a sense of justice, and who believes that empathy should be part of the yardstick by which justice is measured. And, that will be historic. It's hard to believe that this woman—Sonia Sotomayor—is the same woman who, at her US Senate confirmation hearing in 1992, told Judiciary Committee Chairman Joe Biden that "...I don't believe we should bend the Constitution under any circumstance. It says what it says. We should honor that." Too bad she could not respect the rule of law once she got on the bench. That's why 60% of her rulings at the District Court level were reversed by the Supreme Court, and three of the five decisions of the 2nd Circuit that were written by her were also overturned. "Her high reversal rate alone," noted Wendy Wright, president of Concerned Women for America, "should be enough for us to pause and take a good look at her record. Frankly, it is the Senate's duty to do so." Because then President George H.W. Bush nominated her (even though we now know that she was actually nominated by Moynihan who leveraged Bush-41), she was approved unanimously in 1992 by Senators playing politics for votes—not for her, for themselves.And, with a GOP majority that should have soundly rejected her in 1998, she was confirmed by a vote of 67 to 29. Seven of the Republicans who voted for her in 1998 are still in the Senate. It's almost a given they will vote for her again.

In 1992, there was no judicial history on this woman since the closest she came to the bench in a courtroom was during a sidebar arguing a point of law with opposing counsel before a Bronx city court judge. Today there is. None of it is good. Any Republican who casts a vote for her confirmation to the Supreme Court needs to be removed from office.

Looking closely at Sonio Sotomayor when the shroud of her public personae slips, we find a woman who is the mirror-opposite of the portrait of her painted by the liberal media. The media would have us see, through the prism of political-correctness, a compassionate, caring woman. They would have us believe she is a wise Hispanic woman who understands the plight of the poor because she came from poverty. (This, somehow, qualifies her to sit on the highest court in the land.) The reality is, one of her former liberal law clerks—now the legal affairs editor for The New RepublicJeffrey Rosen, observed that Sotomayor "...has an inflated opinion of herself, and...is a bully on the bench." Another law clerk working on the 2nd Circuit (who asked not to be identified) said she's "...not that smart and is a bully on the bench. She is domineering during oral arguments but her questions aren't penetrating and don't get to the heart of the issue."

Law clerks aren't the only ones who think Sotomayor is an arrogant bully. The current edition of the Almanac of the Federal Judiciary reveals how lawyers who have argued cases before the 2nd Circuit call her "nasty," a "terror on the bench," and "angry." The criticism lawyers expressed about Sotomayor stand in contrast to her peers on the 2nd Circuit. Of the 21 judges evaluated in the Almanac, the same lawyers gave 18 Circuit Court judges positive to glowing reviews. Two judges received mixed reviews. Only Sotomayor received negative comments all of the lawyers who responded to the Almanac questionnaire.

Wendy Long of the Judicial Confirmation Network issued a statement in which she said "...Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written.' In another statement she observed: "The records show she is far more of a liberal activist than even the current liberal activist Supreme Court."

As Thomas Sowell so wisely noted in his own commentary on May 27, "If you were going to have open heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is or by the best surgeon you could find—even if he was born with a silver spoon in his mouth, and had every advantage that money and social position could offer? In a 2006 RealClearPolitics.com article Sowell further observed that: "Contrary to what many say in the media, or even in academia, it is not a question of whether a judge is personally conservative or liberal. The real question is whether or he believes he is there to uphold the Constitution, or the Constitution is there to authorize him to do whatever he wants to do." Sotomayor is one of a growing number of judges who believe the Constitution is there to authorize them to do to whatever they want to do in the name of justice.

The reality is, that even though Sotomayor backpedaled at Duke University , she believes she has the authority to "make policy," or, better stated, "make law." One need only look at her rulings as a US District Court Judge and the fact that 60% of her decisions were overturned to understand that she regularly "make laws." And, as noted above, three of the five decisions she wrote as an appellate court judge were overturned by the Supreme Court, and very likely, before she is confirmed to the high court, the fourth case—which is already on the high court's docket—will be overturned as well. (And when Maloney (554 F.3d 56 [2009]) hits the high court's docket, it's likely that all five of the decisions she authored on the 2nd Circuit will be overturned by the Supreme Court.

The Ricci Case
It the 2004 case of Ricci v Destefano. This case concerns a dyslexic 11-year veteran fire fighter named Frank Ricci who flunked a civil service exam for promotion to lieutenant in the New Haven, Connecticut fire department a year or two before he finally passed it. Ricci didn't know he was dyslexic until he flunked his first attempt to pass the exam. Determined to overcome his handicap, Ricci quit his second job (the income from which his family desperately needed to supplement his civil service income). He bought a thousand dollars worth of textbooks. Because of his dyslexia, he had a friend read the textbooks onto cassette tapes. He studied every spare waking moment, even robbing many "moments" during which he should have been sleeping. There were eight lieutenant slots open and he was determined to win one of them.

One hundred eighteen firefighters took the civil service exam in 2004. Ricci scored sixth. He won a lieutenancy. The problems arose when the results were posted. None of the eight who qualified for promotion were black. In fact, even though several Hispanics took the test, seven of the "winners" were white, one was Latino. Even before the seven white guys and one Hispanic could say, "Oh, oh..." 17 black guys filed a grievance, claiming the exams were rigged against them. Had half of the white guys who scored high enough to win promotion been black, all of them would have been on their way to becoming lieutenants or captains. But, that wasn't the case.

The City of New Haven, Connecticut quickly threw the proverbial fire engine into reverse and canceled all of the promotions until they could figure out how to guarantee that a fair amount of those promoted would be African-American. In 21st century America racism endures. But now it is racism against the new minority—white males. The City of New Haven, in shelving the promotions, said that the "disparate impact" of the test penalized the black community and that affirmative action must cast a wider net to ensure that everyone had an equal shot at promotion. As it turns out, only half of the test score for the fire department was based on the written exam. The balance was based on an oral exam administered by fire department experts from all over the country. The oral segment of the test included multiple components dealing with the individual fireman's leadership skills, judgment under fire, ability to lead first responders in an emergency and how they would handle a variety of scenarios in the field.

Ricci filed suit. The case, Civl No. 3:04cv1109(JBA) was heard in the US District Court for the District of Connecticut before US District Court Judge Janet Arterton. Ricci and 16 other white fire fighters, and one Hispanic firefighter, who scored high enough to benefit their careers, sued the City of New Haven and a host of other city officials and two officials of the Connecticut State Board which certifies the results of the test. Seventy-seven of the 118 firefighters took the Lieutenant's exam. Forty-three were white, 19 black and 15 Hispanic. Of the 34 who passed the test, 25 were white, 6 were black and 3 were Hispanic. The top six scorers for the eight slots were white, which meant two Hispanics, who scored 7th and 8th won the other two slots. The black candidates scored 14th, 16th, 19th, 20th, 22nd and 24th.

Judge Janet Bond Arterton, a Bill Clinton appointee, ruled on Sept. 28th, 2006 that the plaintiffs had no standing to file under an Equal Protection under the law claim, agreeing with the City of New Haven that the tests reflected disparate treatment since all of the African-American candidates failed to qualify. Ricci and his co-plaintiffs appealed to the 2nd Circuit Court of Appeals. In writing the majority opinion for the 2nd Circuit, Sotomayor affirmed that in Arterton's opinion the City of New Haven did not need to certify the results of the tests since if they had, it would have opened them to a lawsuit for violating Title VII of The Civil Rights Act of 1964's disparate impact prohibition. Going a step farther, Sotomayor issued a per curiam opinion praising Arterton for a thorough and well-reasoned opinion. Sotomayor went on to state that the City of New Haven could not be held liable for its failure to certify the promotions since it was simply fulfilling its obligations under Title VII. Three days after the 7-to-6 ruling, the six dissenting judges asked for a rehearing. It was denied by the seven judge majority. The six dissenters then prepared an opinion which questioned the court's judgment. That opinion became the basis for Ricci's Supreme Court challenge.

Arterton, like Sotomayor, had no judicial experience before being appointed to the bench. Arterton was a law clerk for US District Court Judge Herbert Stern for about a year from 1977 to 1978. She had a private law practice in New Haven from 1978 to 1995 when Clinton appointed her.

Her most controversial case involved the Violence Against Women Act of 1994, enacted by Clinton's Democratically-controlled Congress a few months before the GOP's Contract With America. The case she heard followed Brzonkala v Morrison and Crawford which served to overturn the Violence Against Women Act. In the first case, 23-year old Christina Brzonkala claimed she was raped by fellow student Antonio Morrison while James Crawford watched. Morrison claimed Brzonkala was a willing participant who simply had "buyer's remorse." Crawford was able to convince the grand jury that he was not even in the room when the sexual activity took place between Morrison and Brzonkala. Crawford was charged with disorderly conduct for an altercation with police in the parking lot outside the building where the rape supposedly took place. Because of the rape allegation, Crawford lost his scholarship at Virginia Tech and returned home to Florida.

The grand jury did not buy Brzonkala's story and refused to indict. She sued for cilvil damages under the Violence Against Women Act, which federalized crimes against women. US District Court Judge Jackson L. Kiser found the Violence Against Women's Act to be an unconstitutional application of the commerce clause. Desperate to repatriate Public Law 103-322, Clinton was pleased when Arterton took on a similar case. Unlike Kiser, in Arterton's courtroom, she found that "...violence against women has a substantial impact on commerce." She ruled to uphold Public Law 103-322. In a 5-to-4 decision, the Supreme Court overturned the civil rights aspects and the commerce clause application of the Violence Against Women Act, gutting the law. In 2005, the left-leaning Republican-controlled Congress changed the verbiage and reenacted the law as the Violence Against Women and Department of Justice Reauthorization Act.

Sotomayor's Philosophical History
Sotomayor will forever be tied to Arterton over the 2004 case, Ricci v Destefano. Both judges are bad jurists because both believe "empathy" plays a role in good jurisprudence. To the far left, both are good soldiers in the war to deconstruct the Constitution of the United States and, by practice, to mold it into the UN Covenant on Human Rights where all rights are conditional upon the whims of government.

To hear the rhetoric of the liberal media—together with an array of liberal talking heads and a host of lawyers and far left constitutional scholars—discuss her 17-years on the bench, Sotomayor has been the epitome of a cautious jurist who respects historic precedents and is ever mindful of the rule of law. Conservatives counter that her words and actions over the years have been a litany of reverse racism and intolerance for anyone who disagrees with her views.

Even as she denies judicial activism, she laughing admitted during a panel discussion at Duke University in 2005 that it's "...at the Court of Appeals level is where policy is made." quickly adding that because the discussion was being recorded, she "...should never have said that because we don't make law. Having said that," she added, "the Court of Appeals is where...before the Supreme Court makes the final decision, the law is percolating—its interpretation, its application. And, Judge (...) is right, I often explain to people when you're on the District Court, you're looking to do justice to the individual case. So you're looking much more into the facts of the case then you are to application of the law because the application of the law is not a precedent, so the facts control. On the Court of Appeals, you are looking to how the law is developing so that it will then be applied to a broad class of cases. So, you're always thinking about the ramifications of this ruling on the next step in the development of the law." When you speak of the "development" of what is legally construed to be settled law, you are speaking of the evolution of the law to fit an evolving society. That is judicial activism. Sotomayor is a judicial activist who strongly believes that "good law" is a blend of legal decisions not only from the United States, but the international courts, flavored with what she calls "empathy"—which translates to, her pet prejudices tempering the bluntness of the rule of law if the law leans too far in the wrong direction.

Without checking beyond the moderate window dressing, several pro-life Christian leaders including Catholic League president Bill Donahue have thrown their support to Sotomayor, who is Roman Catholic. Donahue said he is quietly rooting for her confirmation, adding that he believes Sotomayor's record contains more bright spots than conservative Catholics can reasonably expect from any Obama candidate for the high court. Donahue admitted he wished he "...knew more about her. But from what we know, it looks like she'll be at least a wash with Souter, and maybe we'll even see improvement." Sadly, that will not be the case. Souter, on his worst day, will be better than Sotomayor on her best day.

While Souter and the liberal members of the high court as well as many of those on the appellate courts attended globalist indoctrination classes at the Hague (which encourage US federal judges to draw from international case law in rendering US court decisions thereby diluting the US bill of rights), Souter nevertheless follows the logic of the rule of law even though he bends it to the left almost beyond the point of endurance. Sotomayor, who also ascribes to the globalization of US law, is far more radical than Souter. When then House Judiciary Committee Chairman James Sensenbrenner offered up House Resolution 97 on Feb. 15, 2005, in an attempt to bann federal judges from citing international law in their rulings, the 109th Congress enacted it. Sotomayor quickly condemned the action of the House of Representatives. Judge Sotomayor is not only an ardent advocate of the use of international law in US court cases, she is an advocate of what is known as "legal realism," a judicial philosophy that allows US judges to ignore the US Constitution and the US Code completely, basing their rulings on international case law.

Judicial activism today is based on the principles of legal realism. Legal realism is the judicial philosophy of Judge Jerome Frank, developed in his 1930 book, Law And The Modern Mind. Judge Frank believed that the laws of man necessarily had to evolve as the circumstances of society changed. Frank argued that judges were obligated to do more than just administer static law. Frank believed judges should look at the original intent of the law, and reinterpret that intent based on the new norms of the evolving society. Judicial activism was born at Yale University—the alma mater of both Resident Barack Obama, Judge Sotomayor and, of course, Judge Frank who joined the faculty of Yale as a lecturer in 1946. Judge Frank remained there until his death in 1957.

Sotomayor was an avid student of Frank's philosophy. Asked to write the introduction to the November, 2007 book, The International Judge, co-authored by Daniel Terris, Leigh Swigart and Cesare P.R. Romano, Sotomayor noted that the book would be instrumental in "...developing an international rule of law and institution-building and [idealizes] the pioneers who work tirelessly to bring these institutions from the incipience to their maturity." While Judge Ginsburg has worked tirelessly to incorporate international law into the federal court system, she is nowhere near the zealot Sotomayor is. That comes in part from possessing a nontraditionally American mindset—which both Sotomayor and Obama have. In Sotomayor's case, she was American born, in the Bronx. However, like many immigrant families who move into ethnic neighborhood within the nation's urban centers that are nothing less than cloistered ghettos, walled by a foreign language and a mindset that is miles removed from their English-speaking neighbors. In Obama's case, he was born in Mombassa, Kenya at 7:24 p.m. on Aug. 4, 1961. His mother, Stanley Ann Dunham, returned to Honolulu within three days of his birth and applied for a Hawaiian birth certificate claiming her son was born "at home." When her son was four, Stanley Ann met and married Lolo Soetore, a Wahabbi Muslim who became the greatest influence in the shaping of Obama's mind throughout the formative years of his childhood, and is likely most responsible for the views Obama now holds. Soetoro took his new wife and new son to Indonesia, where they remained for eight years. Obama would be 12-years old before he was truly exposed to the United States and American culture.

The same is true of Sotomayor who sees her world through the eyes of a Puerto Rican native, not as a tradition US-born American, although she is. She is, mentally, far more worldly than most US citizens—even those within our government who stoutly advocate on behalf of global government. She sees herself more "American" than the rest of us, because she views the word "American" much different than the rest of us. Her "America" is hemispheric. Ours is national.

That difference was probably never more clear to honest observers than when she presided over the appeal in the 2000 case of Croll v Croll which dealt with the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In that case, Hong Kong resident Mrs. Mei Yee Croll was granted sole custody of their sole daughter, Christine. Her ex-husband, Stephen Halladay Croll was given "reasonable access" to his daughter. Further, the order dissolving the marriage contained a provision that barred Mrs. Croll from taking her daughter from Hong Kong until she reached the age of 18 years without the court's consent. Mrs. Croll decided to return to the United States and, taking her daughter, did so. Under the rules of the Hague Convention, Stephen Croll filed abduction charges against his former wife and demanded the return of his daughter to Hong Kong.

When Judge Sidney Stein of the US District Court for the Southern District of New York heard the case, he found for the father and ordered the child, Christine, to be returned to Hong Kong, based on the Hague Convention on the Civil Aspects of International Child Abduction. The mother appealed. The 2nd Circuit Court of Appeals sided with the mother, arguing that the Hague Convention did not give Mr. Croll, the non-custodial parent, the right to decide the child's place of residence. Sotomayor dissented, arguing for a more expansive interpretation of the treaty, referring to foreign case law to make her argument. About the case, attorney Anne Howe of SCOTUSBlog, wrote: "Sotomayor went through the foreign cases quite extensively and found that the view she was taking was consistent with what had been found by foreign courts. She paid more attention to them than the majority had."

As the political pundits bat the pros and cons of Judge Sonia Sotomayor back and forth like a tennis match on the Sunday morning news shows until the Senate confirms or rejects her, the simple reality is that philosophically, Sotomayor is a dangerous judicial activist who, if she gets on the high court, will be a catalyst in the rapid erasing of what's left of the Bill of Rights. Although Sotomayor may have the intellectual tools needed to sit on the nation's court-of-last-resorts, she has adopted an activist judicial philosophy that makes her qualiifications absolutely irrelevant. The Republican members on the Senate Judiciary Committee who blindly voted for her confirmation to the US District Court in 1992, and the seven remaining Republicans who blindly voted for her leap to the 2nd Circuit Court in 1998 need to do the job they were hired to do—they must expose Sotomayor as the judicial activist she is while there is still a Constitution, and a nation, left to protect.

 

 

Just Say No
Copyright 2009 Jon Christian Ryter.
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