"America is like a healthy body and its resistance is threefold: its patriotism, its morality, and its spiritual life. If we can undermine these three areas, America will collapse from within."
--Joseph Stalin

Thursday, July 16, 2009

For Sotomayor speeches over shadow record

Will Malven

These hearings have been a study in circumspection, dissembling, and redefinition. It has been very reminiscent of watching the Clintons' performance during the Whitewater investigations.

It seems that Judge Sotomayor is the most imprecise public speaker in history. Every statement with which she has been confronted she has explained away by saying some variation of "What I really meant to say was..." fill in the blank with whatever explanation is most suited to alleviate the concerns of which ever Senator is doing the asking.

The problem remains, what she actually said in her speeches paints the picture of an arrogant, racist, activist judge who has no problem with imposing "the richness of her experience" or with "making policy" from the bench rather than following the Constitution.

Democrat Senators, President Obama, and even Judge Sotomayor have repeatedly cited her record as a tough law and order judge and former prosecutor as proof that she is suited to occupy Justice Souter's empty chair.

If she was applying for a seat on a lower court, they might be right. She has an admirable record on law and order issues, but her record on individual rights and the protections given all citizens under the Constitution is far more worrying, as exemplified by her latest decision to be overturned by the current Supreme Court (a 5-4 decision). Even those Justices who voted against overturning the Ricci decision were very critical of the manner in which the Sotomayor and her two colleagues reached their decision and the cursory examination given the underlying issues surrounding the case.

The real problem with using her record as a lower court judge however, lies in the constraints or lack thereof which rest on a Supreme Court Justice. As a lower court judge, Sandra Sotomayor was constrained in her decisions and the latitude with which she could stray from established precedent by the decisions and rulings made in the Supreme Court. Her position on any given issue was regulated more by existing law than by any opinion she might personally hold.

As a Supreme Court Justice, Ms. Sotomayor will face no such constraints. She may say that the concept of stare decisis carries weight or that previous decisions by the Supreme Court deserve careful consideration, but the truth is that she is not constrained in any way in how she addresses the Constitution or any issue on which a previous bench of justices has ruled.

As a Supreme Court Justice she will be free to impose her personal beliefs on the rest of her fellow American citizens without limit. As an example, if she opposes Second Amendment rights, she can ignore the previous court's Heller decision and rule that no citizen has the right to keep and bear arms, that the Second Amendment only addressed those right as they impinge on the need for a militia. We have no way of knowing whether she will or not, but she would be well within her rights to do so and in her past rulings she has indicated that she does not hold the Second Amendment in the same esteem that she might the First Amendment.

Because of this almost absolute power and freedom from judicial restraint, her writings and speeches must carry greater weight than those who defend her seem willing to give them.

Sotomayor has been far less than honest during these hearings. Rather than defend what she has said, she has attempted to explain away almost every controversial statement she has made.

She didn't really mean that she "would hope that a Latina woman with the richness of her experience would make a better decision than a white male," she was just attempting to inspire young Latinas in the audience to aspire to greater heights. Or as she explained it to Senator Cornyn (R-TX) today:

"I didn't disagree with what I understood was the basic premise that Justice O'Connor was making, which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. What I disagreed was with the literal meaning of her words because neither of us meant the literal meaning of our words. My use of her words was pretty bad in terms of leaving a bad impression. But both of us were talking about the value of experience and the fact that it gives you equal capacity.

She didn't really mean that the Court of Appeals makes law when she said:

"...court of appeals is where policy is made…and I know, I know this is on tape and I should never say that because we don’t “make law,”[dismissive quote motion with hands] I know [laughter] uh…I know. I’m not promoting it I’m not advocating it…I’m, you know...[silly looking conspiratorial grin accompanied with another dismissive hand gesture and a chuckle]."

She actually meant:

"that statement was made absolutely expressly that that was the context of the kind of policy I was talking about, which is the ramifications of a precedent on all similar cases."

Okay..........hmmm....maybe she's telling the truth, although her facial expressions and general demeanor when she made those statements lend to my skepticism, but what has become abundantly clear is that her thinking is sloppy.

Sotomayor is careless in her speech and imprecise in her reasoning. She seemingly appears to be prone to saying one thing while meaning something completely different. For that reason, she has been forced to explain repeatedly statements which, on the surface at least, seem to run contrary to the charge the Constitution lays upon each Justice to interpret the law, not make it.

One thing is obvious; she is going to be confirmed rather handily and not just by Democrats. There are a number of Republicans who seem more interested in scoring points with their constituents prior to voting for Judge Sotomayor than they are in stopping someone who will endanger our nation by creating law from the bench.

It is disturbing that someone like Sandra Sotomayor who is clearly a tool of Obama and like minded people, who prefer to rule rather than govern, can be seated on the highest court in the land, but it is reassuring that, at least in this case, she will be replacing a justice who was very much of a like mind.

Unless Justice Kennedy loses his nerve and his independence, the balance on the court will remain unchanged. Under this President that is a good thing, because he aspires to accrue greater power than any of his predecessors since Roosevelt.

There will be further battles in the future. As Obama's policies continue to fail and his popularity and that of Democrats in Congress continues to fall, there will be mounting pressure from dissatisfied Democrat constituents to alter the course upon which they have steered this American ship of state.

Perhaps then a candidate like Judge Sotomayor will face a less certain future than she herself faces. Perhaps Democrat members of Congress, fearing for their careers and reelection, will begin to have second thoughts about who the Empty Suit in Chief is nominating for the Supreme Court.

Long Live Our American Republic!!!!

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