by Matt Burke ( Matt is a good friend--despite being a lawyer and former John McCain supporter- and works in Georgia republican party politics.
May 26, 2009
Today, President Obama placed Judge Sonya Soltomayor, currently a Justice on the United States Circuit Court of Appeals for the Second Circuit (New York), into nomination for the open seat on the Supreme Court. As expected, Judge Soltomayor is a liberal jurist who believes in the “living constitution” instead of one that is firmly founded in our nations’ values and history.
First, some talking points about Judge Soltomayor:
She is not the first Hispanic to be nominated to the Supreme Court. That honor went to Benjamin Cardozo (he was of Portuguese- Jewish ancestry), who was nominated by Republican Herbert Hoover.
The case of Ricci v. DeStefano is currently being decided by the Supreme Court. This is a case of discrimination (some call it reverse discrimination) where a white firefighter successfully passed the lieutenant’s exam for promotion, but the results of the tests did not produce any minority lieutenant candidates, so the results were thrown out. Judge Soltomayor ruled in favor of the City of New Haven, who threw out the results of the test. It is expected that the Supreme Court will reverse that decision. This will be the rare occurrence where a nominee has been reversed while going through the nomination process.
She is one of only three federal appellate judges in America to issue a court opinion saying that the Second Amendment does not apply to states. The case was Maloney v. Cuomo, and it was issued this year, in spite of the Supreme Court decision in Heller v. DC (the DC gun ban case). (thanks to the heads up from Ken Blackwell on this)
The Judicial Confirmation Network states that Judge Soltomayor has a 100% reversal rate in the Supreme Court, which means that the Supreme Court has disagreed with every one of her published opinions that have reached the Supreme Court. This is an extraordinary statistic and should give pause when considering her legal acumen.
Surprisingly, not all Democrats are on board with this selection. Jeffrey Rosen, legal affairs editor at the liberal New Republic wrote an article about Soltomayor. Rosen spoke with a “range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court.” Rosen reported, “nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.”
Specifically on her intellect, Rosen noted, “the most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it. ‘She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue.’”
Rosen continues: “Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.”
While conservatives should not be happy with this selection, elections do have consequences, one of them being that the President, with a majority of votes in the Senate, can pass this nomination.
However, this selection may have a disastrous consequence on the progressive movement’s attack on the Supreme Court. Right now, there are four solid conservative votes on the Court, and four solid liberal ones (even replacing Justice Souter with a Justice Soltomayor), with Justice Kennedy in the middle, who has a slight trend towards being conservative. When the Justices are deciding on a case, there is a robust debate where each side makes their points in an attempt to win support. If Judge Soltomayor is as advertised in the New Republic, namely a bully whose arguments are not very strong, she may unwittingly push Justice Kennedy to the other side, thus giving conservatives regular victories.
While conservatives should oppose this nomination on philosophical grounds, her nomination may just make the Court more conservative in the long run by tightening up Justice Kennedy’s decisions.
