POLL: 71% of Voters Don't Trust Sotomayer to judge fairly

The opportunity on Sotomayor, part II

from Hot Air.com
June 3, 2009
by Ed Morrissey

Last week, I wrote that the Republicans have an opportunity with the Sonia Sotomayor nomination not to conduct filibusters or fire-breathing sermons, but to calmly and dispassionately demonstrate that neither she nor Barack Obama represent the opinions of the majority of Americans on identity politics. A new Quinnipiac poll underscores that opportunity. A majority of voters across a wide swath of demographics oppose affirmative action and race- and gender-based setasides in government, education, and academia:

American voters say 55 - 36 percent that affirmative action should be abolished, and disagree 71 - 19 percent with Supreme Court nominee Sonia Sotomayer’s ruling in the New Haven firefighters’ case, according to a Quinnipiac University poll released today.

More than 70 percent of voters say diversity is not a good enough reason to give minorities preferential treatment in competition for government or private sector jobs, the independent Quinnipiac (KWIN-uh-pe-ack) University survey of more than 3,000 voters finds.

This poll brings good news to those who want to see a color-blind society. For the most part, all demographics favor protections for the disabled, but not for ethnicity and gender:

•Support 55 - 39 percent affirmative action for the disabled in hiring, promotions and college admissions. Protestants and Catholics support it, 49 - 46 percent and 49 - 47 percent, respectively. Jews also support it 59 - 25 percent;

•Oppose 70 - 25 percent giving some racial groups preference for government jobs to increase diversity. Black voters support it 49 - 45 percent while Hispanic voters are opposed 58 - 38 percent;

•Oppose 74 - 21 percent giving some racial groups preference for private sector jobs to increase diversity. Voters in every racial and religious group oppose this;

•Oppose 64 - 29 percent affirmative action for Hispanics in hiring, promotion and college entry. Black voters support it 59 - 30 percent while Hispanics split 47 - 48 percent;

•Oppose 61 - 33 percent affirmative action for blacks in hiring, promotion and college entry. Black voters support this 69 - 26 percent, as do Hispanics 51 - 46 percent;

•Oppose 62 - 32 percent affirmative action for white women in hiring, promotion and college entry. Women oppose this 58 - 35 percent but blacks support it 55 - 37 percent.

This puts Sotomayor and Obama in a narrow group that still favors preferential treatment and outcome-based policies. Republicans should see this as the real goal of the confirmation hearings - to communicate this to the entire electorate. As the poll demonstrates, it entails almost no risk and a large potential upside.

But in order to make that argument, they need to stick to rational arguments based on Sotomayor’s own words and her decisions, especially on Ricci. The GOP needs to avoid the inflammatory personal insults and the demand for obstructionism and focus on the fight they can win. Most Americans will agree that a President has the prerogative to get his judicial appointments a fair vote, at the very least. That doesn’t mean Republicans have to vote to confirm Sotomayor, but a filibuster won’t work, and a failed attempt will make the GOP look even more impotent.

In this case, Republicans represent the majority of Americans. They have a great opportunity to use the confirmation hearings as a stage to demonstrate that, as well as demonstrate their readiness not just to oppose Obama but to prove themselves trustworthy enough for leadership in DC.
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Is Obama's Supreme Court Pick a Racist?

This is a great one!

Obama prefers a Justice who will violate their oath of office...

Empathy vs. Impartiality - When they conflict, the Supreme Court must choose the latter.

from The National Review
By Jonah Goldberg
May 27, 2009

Why make this complicated?

President Obama prefers Supreme Court justices who will violate their oath of office. And he hopes Sonia Sotomayor is the right Hispanic woman for the job. Here’s the oath Supreme Court justices must take:

“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 the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.”

Contrast that with Obama’s insistence that the “quality of empathy, of understanding and identifying with people’s hopes and struggles” is the key qualification for a Supreme Court justice. According to White House talking points, Judge Sotomayor’s “American story” of humble origins — she was raised in the South Bronx — best prepares her for the high court because it shows “she understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.”

Obama says law and precedent should determine rulings in “95 percent of the cases,” but in the really hard and important cases, justices should go with their heart. “In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

Now, keep in mind that 5 percent of Supreme Court cases isn’t everything, but it’s nearly 100 percent of what we argue about as a country. For the hard cases Americans care most about, Obama says empathy should rule.

So, what’s wrong with empathy?

Well, nothing. Empathy is a fine thing, and all decent people should employ it, including Supreme Court justices.

But Obama has something specific in mind when he talks about empathy. He wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.

I don’t think this is open to much debate. When Obama voted against Chief Justice John Roberts’s confirmation, he said that Roberts didn’t have the “heart” to vote the right way in those 5 percent of cases. Rather than Roberts the Cruel, Obama explained, “we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.” Cue Sotomayor the Empathic.

The reasoning here is a riot of dubious assumptions. Obama and Sotomayor both assume that a firsthand understanding of the plight of the poor or the African-American or the gay or the old will automatically result in justices voting a certain (liberal) way. “I would hope,” Sotomayor said in 2001, “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.” This is not only deeply offensive, it is also nonsense on stilts. Clarence Thomas understands what it is like to be poor and black better than any justice who has ever sat on the bench. How’s that working out for liberals?

Of course, liberals say that if you don’t agree with their policy prescriptions on, say, racial quotas or abortion, it’s because you don’t care as much as they do about minorities or women. Which is why they’ve demonized Thomas as a villainous race-traitor. This, too, is aggressively stupid. But even if it were true, why are we talking about policy preferences and the courts? Judges aren’t supposed to have policy preferences, despite Ms. Sotomayor’s insistence that the courts are “where policy is made.”

More important, who says conservatives are against judicial empathy? I, for one, am all for it. I’m for empathy for the party most deserving of justice before the Supreme Court, within the bounds of the law and Constitution. If that means siding with a poor black man, great. If that means siding with a rich white one, that’s great too. The same holds for gays and gun owners, single mothers and media conglomerates. We should all rejoice when justices fulfill their oaths and give everyone a fair hearing, even if that’s now out of fashion in the age of Obama.

— Jonah Goldberg is editor-at-large of National Review Online and the author of Liberal Fascism: The Secret History of the American Left from Mussolini to the Politics of Meaning.
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Dear President Obama: You're kidding.... right? Comrade Sotomayor for Supreme Court

Sotomayor is also very ant-gun. She believes the Bill of Rights actually makes it illegal for ordinary citizens to own guns. So not only are we a "Nation of Cowards," we are also a nation of "Gun Carrying Criminals."
Rees

from Dear Mr. President
May 26, 2009

VIDEO: Sotomayor on the court: 'Where policy is made'...Sotomayor: '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'...Prospect's Résumé...
Self described 'Newyorican'...
MAG: The Case Against...
NBC: Would Republicans dare vote against first Hispanic Woman?
McConnell: 'Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record'...NO BIG OPINIONS ON ABORTION...

Look, Mr. President... I GET that you're very big on affirmative action, given what it's done for you... but this is absurd.

You actually WANT to appoint a Justice that directly violates judicial tenets by believing and acting on the concept of usurping legislative prerogative by making "policy" from the bench?

Once again, you've managed to frighten and disgust me.

Well done.
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Crash Course on the Constitution and Originalism

Mr. President, Lady Justice wears a blindfold for a reason.

image of Lady Justice Statue from Statue.com

This is the most well-written article that I've read regarding the Supreme Court nominee issue.
Rees

from the blog America's Right
by Jeff Schreiber
Friday, May 1, 2009

Note the Blindfold, Mr. President

She is not to know of strife. She is not to know of circumstance. She is not to know of wealth or poverty, strength or weakness, education or illiteracy, gifted oratory or bumbling foolishness.

Obviously, you know not the role of the judiciary.

Your remarks today showed complete ignorance as to the designated function of two of the three branches of the very government you lead. You say that "justice isn't about some abstract legal theory or footnote in a casebook," but it is. That "abstract legal theory," Mr. President, is the United States Constitution, a document you have in the past derided as being fundamentally flawed. You say that justice is "about how our laws affect the daily realities of people's lives," but you're wrong. Making law is the role of legislators; a judge's role is to interpret it and nothing more. You would know this, sir, if you had spent your time in the U.S. Senate actually legislating rather than preening and campaigning.

Mr. President, I have absolutely no problem with you personally. You seem to have a decent sense of humor, and by all appearances care deeply for your family. I appreciate that. And, Mr. President, I can also appreciate our political differences as just that -- political differences, cultivated by vastly different backgrounds and experiences, all leading up to great divergence in ideology. But, Mr. President, your idea of the role of the judiciary is downright dangerous, and immeasurably ignorant.

On page 79 of your book, The Audacity of Hope (a title, by the way, which seems more and more pertinent with each passing day), you wrote the following:

With conservative republicans making gains in the congressional and presidential elections, many liberals viewed the courts as the only thing standing in the way of a radical effort to roll back civil rights, women's rights, civil liberties, environmental regulation, church/state separation, and the entire legacy of the New Deal.

From this, Mr. President, it seems extremely obvious--and particularly telling--that you look upon the judicial branch as being on even ground with the legislative branch with regard to enacting legislation that would expand civil rights, women's rights, environmental regulation, and sweeping economic and social change. Add today's statement that your ideal Supreme Court Justice would take into account for their decisions whether people "can make a living and care for their families" and whether they "feel safe in their homes and welcome in their own nation," and I'd say that my assessment is fair.

And I'd likewise say that your perspective is dead wrong. On the Court, and on the Constitution.

As a student, you studied our founding documents at Harvard Law School. As a professor, you taught Constitutional Law at the University of Chicago. And, as president of the United States, you will nominate anywhere between one and four Justices--if not more--to the Supreme Court. On all accounts, you should know better.

In 2001, you gave a public radio interview as a state senator and law professor in which you lamented that the Supreme Court "never ventured into the issues of redistribution of wealth, and more basic issues of political and economic justice in this society" and that the Court had not facilitated the ability for America to "break free from the essential constraints that were placed by the founding fathers in the Constitution." On the Constitution itself, you remarked that, because it never forced the redistribution of wealth to African Americans, it was a document with a "fundamental flaw" that "reflected the enormous blind spot in this culture that carries on until this day."

That view, Mr. President, seems to lend itself to your idea that it is the job of the Supreme Court to assume the role of the legislature, essential constraints of the Constitution be damned. Hence your mission to nominate a Justice which considers hopes and dreams and struggles as much, if not more, than the law itself -- and that says nothing of your politically correct focus on gender and national origin rather than pure qualification.

Mr. President, you are absolutely, unequivocally, 100 percent wrong on the role of the judiciary, and your blindness as to what should be the blindness of justice could very well haunt this nation for generations to come. The role of a Supreme Court Justice, Mr. President, is not to evaluate the matter at hand based upon the feeling in their "hearts." Decisions and outcomes are to be based upon interpretation of the law and of the Constitution alone -- not "empathy," and surely not the ability to understand and identify with "people's hopes and struggles," as you said today. The role of a Supreme Court Justice, Mr. President, is not to make a decision based upon the interests of a single mother, a welfare addict, or anyone else for that matter, just as the role of the judiciary is neither to favor the weak against the strong, nor the strong against the weak. When weighing a particular controversy, Mr. President, the role of a Supreme Court Justice is to instead look at the United States Constitution as written by this nation's founders and interpret that document--preferably in as narrow a fashion as possible--as needed to adjudicate the controversy in question. At most, contemporaneous writings shedding light on the framers' intentions and aspirations may be persuasive, but certainly not binding. Foreign law should never enter into the equation.

Mr. President, contrary to what you said in 2001, the United States of America does not need to "break free" from the principles put forth by our framers. As far as I can tell, the abandonment of those ideas and ideals is what got us here in the first place. Breaking free from the principles and values of those imperfect men is precisely why we stare a bloated government in the mouth and watch helplessly as our sovereignty is eroding by the minute.

Every single word, phrase and paragraph in our founding documents are there for a reason, placed there by people who fought, bled and died to make this country the antithesis of the tyrannical rule from which they escaped. This is a nation which, because of its founding principles, is a beacon of hope for those around the world who strive for freedom, opportunity and fairness. And now, Mr. President, a man who laments that the Supreme Court hasn't simply tossed asunder the principles and aspirations of our founding fathers in the name of "economic justice" and "social engineering" has the opportunity to nominate a Justice to that Court.

That man is you. And as an American, Mr. President, I hope you abandon everything you've learned and everything you know, and that you choose wisely. Note the blindfold, Mr. President. Like every word in our founding documents, it's there for a reason.
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Hey Obama! You obviously don't even know what a Supreme Court Justice does

from the blog Dear Mr. President
Friday, May 1, 2009

Dear Mr. President: Please leave your cluelessly idiotic hands off the Supreme Court

Mr. President, I get that so far you've been totally incompetent in handling our economy, our domestic policies, our foreign policies and your choices for staff and cabinet.

But for you to come out and spew this garbage:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes

You make me think that perhaps whatever law school you attended (Matchbook Cover Law School?) should give you a complete refund... with interest.

Words almost fail me as to how moronic such a bizarre perspective could possibly be.

Let me help you, idiot stick: Supreme Court Justices have precisely ONE function: and that is to interpret that law while determining it's Constitutionality.

There is no place for "empathy." There is no place for "hopes and struggles." There is, in fact, no place for "just decisions and outcomes."

You fricking idiot; you're even politicizing the US SUPREME COURT!

I'm astounded that you must have missed the first day of Constitutional Law 101 at Matchbook U.

You would put people on the bench not based on their academic and legal qualifications, but instead, by how much they reflect YOUR moronic view of the law, which clearly doesn't extend beyond a series of suggestions that YOU can ignore whenever the mood strikes.

To paraphrase someone relatively close to you, for the first time in my life I'm ashamed of my country because they saw fit to elect a complete ignoramus like you.
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Here is a post from the blog Power Line

A lawless president looks for a lawless Supreme Court Justice
May 1, 2009
Posted by Paul at 7:13 PM

President Obama made a short statement about the retirement of Justice Souter in which he outlined what he will be looking for in Souter's replacement. He stated, in part:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes

(emphasis added)

By indicating that his concern is not just with just decisions but also just outcomes, Obama reveals the lawless quality of his thinking. The legitimate function of a judge is to reach just decisions, full stop. Once judges, or the president who appoints them, start thinking about just outcomes, we are well down the path to judicial tyranny. And once just outcomes are defined as those that display empathy for "the people," we could be starting down the road to banana republic status.

Obama apparently wants outcomes that will make people feel welcome in their own nation. It's not clear to me what he's referring to here. But whatever it is, the extent to which people feel welcome must be determined by how their neighbors view them and, to the extent (limited, one hopes) the law becomes involved, the rights and benefits conferred by the language of the laws in question.

If Obama wants to appoint a Justice who has run or worked in a soup kitchen, that's fine. But it looks to me like he wants to appoint a Justice who will reach outcomes that establish "soup kitchens" regardless of whether that's the best view of the legal provision he or she is interpreting.

Expect the worst, not just from this judicial nomination but from all subsequent ones.
Posted by Just a guy at 8:19 PM
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Obama Just Displayed His Middle Finger...Again! This time it was to the American People!

Did you see that? Obama just gave America the middle finger!

His choice of Harold Koh exhibits a level of arrogance that's pathologically extreme in its nature. He's chosen someone that's so anti-constitution and anti-American, there may be even some Obamabots that might oppose him. I can't imagine anyone would want this man serving in the Obama Administration.

Obama has basically said "screw you" to the American people. He doesn't care what we think. He is going forward with his plan and daring the the republicans to try and stop him. It only take one Republican vote for this guy to be approved. Anyone who does approve him should be asked to resign immediately.
Rees (now I feel much better)

OBAMA'S MOST PERILOUS LEGAL PICK
Koh: Wants US courts to apply "world law."

from The New York Post

By MEGHAN CLYNE
March 30, 2009

- 'JUDGES should interpret the Constitution according to other nations' legal "norms."
- Sharia law could apply to disputes in US courts.
- The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq.

JUDGES should interpret the Constitution according to other nations' legal "norms." Sharia law could apply to disputes in US courts. The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq. Those are the views of the man on track to become one of the US government's top lawyers: Harold Koh.

President Obama has nominated Koh -- until last week the dean of Yale Law School -- to be the State Department's legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice.

It's a job where you want a strong defender of America's sovereignty. But that's not Koh. He's a fan of "transnational legal process," arguing that the distinctions between US and international law should vanish.

What would this look like in a practical sense? Well, California voters have overruled their courts, which had imposed same-sex marriage on the state. Koh would like to see such matters go up the chain through federal courts -- which, in turn, should look to the rest of the world. If Canada, the European Human Rights Commission and the United Nations all say gay marriage should be legal -- well, then, it should be legal in California too, regardless of what the state's voters and elected representatives might say.

He even believes judges should use this "logic" to strike down the death penalty, which is clearly permitted in the US Constitution.

The primacy of international legal "norms" applies even to treaties we reject. For example, Koh believes that the UN Convention on the Rights of the Child -- a problematic document that we haven't ratified -- should dictate the age at which individual US states can execute criminals. Got that? On issues ranging from affirmative action to the interrogation of terrorists, what the rest of the world says, goes.

Including, apparently, the world of radical imams. A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that "in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States."
A spokeswoman for Koh said she couldn't confirm the incident, responding: "I had heard that some guy . . . had asked a question about sharia law, and that Dean Koh had said something about that while there are obvious differences among the many different legal systems, they also share some common legal concepts."

Score one for America's enemies and hostile international bureaucrats, zero for American democracy.

Koh has called America's focus on the War on Terror "obsessive." In 2004, he listed countries that flagrantly disregard international law -- "most prominently, North Korea, Iraq, and our own country, the United States of America," which he branded "the axis of disobedience."

He has also accused President George Bush of abusing international law to justify the invasion of Iraq, comparing his "advocacy of unfettered presidential power" to President Richard Nixon's. And that was the first Bush -- Koh was attacking the 1991 operation to liberate Kuwait, four days after fighting began in Operation Desert Storm.

Koh has also praised the Nicaraguan Sandinistas' use in the 1980s of the International Court of Justice to get Congress to stop funding the Contras. Imagine such international lawyering by rogue nations like Iran, Syria, North Korea and Venezuela today, and you can see the danger in Koh's theories.

Koh, a self-described "activist," would plainly promote his views aggressively once at State. He's not likely to feel limited by the letter of the law -- in 1994, he told The New Republic: "I'd rather have [former Supreme Court Justice Harry] Blackmun, who uses the wrong reasoning in Roe [v. Wade] to get the right results, and let other people figure out the right reasoning."

Worse, the State job might be a launching pad for a Supreme Court nomination. (He's on many liberals' short lists for the high court.) Since this job requires Senate confirmation, it's certainly a useful trial run.

What happens to Koh in the Senate will send an important signal. If he sails through to State, he's a far better bet to make it onto the Supreme Court. So Senate Republicans have a duty to expose and confront his radical views.

Even though he's up for a State Department job, Koh is a key test case in the "judicial wars." If he makes it through (which he will if he gets even a single GOP vote) the message to the Obama team will be: You can pick 'em as radical as you like.
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Meghan Clyne is a DC-based writer