The Sotomayor Factor

With President Obama's nomination of Judge Sonia Sotomayor of the Second Circuit Court of Appeals to replace retiring Justice David Souter on the Supreme Court, inquiring minds are wondering about the implications of her appointment (if, as appears likely, she is confirmed by the Senate) on Second Amendment and other issues. Here's what some are saying:

Ken Blackwell: President Obama declares war on gun owners with Supreme Court pick:

President Obama’s nomination of Judge Sonia Sotomayor is a declaration of war against America’s gun owners and the Second Amendment to our Constitution. If gun owners mobilize and unite, it’s possible (though unlikely) to stop this radical nominee.

Last year the Supreme Court handed down the landmark decision in D.C. v. Heller, holding that the Second Amendment right to bear arms applies to individual citizens in their private lives. The ruling marked a turning point in gun rights in this country.

In the past year, the biggest question courts now face is whether the Second Amendment applies to the states. That may sound crazy, but the reality is that the Bill of Rights only controls the federal government, it doesn’t apply directly to states or cities. Only the parts of the Bill of Rights that are “incorporated” through the Fourteenth Amendment apply to the states.

Since the Heller decision, only two federal appeals courts have written on the Second Amendment. That’s six judges out of about 170. Of those six, three said the Second Amendment does apply to the states. And those judges were out of the liberal Ninth Circuit in California, and included a judge appointed by Bill Clinton and another appointed by Jimmy Carter. — Even leftist judges can get this.

But not Judge Sonia Sotomayor. 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 came down this past January.

That means if Chicago, or even the state of Illinois or New York, wants to ban you from owning any guns at all, even in your own house, that’s okay with her. According to Judge Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that’s okay under the Constitution. ...

Reason Magazine: Sotomayor on gun rights and racial preferences:

President Barack Obama's announcement that he wants federal appeals court Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter comes as something less than a shock. For months, Sotomayor's name has topped most lists of potential candidates. With her compelling personal story, which stretches from a Bronx, New York housing project to Yale Law School to the federal Second Circuit Court of Appeals, Sotomayor's likely appointment as the Court's first Hispanic justice nicely complements Obama's own "only in America" narrative.

But when it comes to her judicial philosophy, there are some real causes for concern. In particular, on the hot-button issues of affirmative action and Second Amendment rights, her record suggests a decidedly illiberal vision of constitutional law.
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Equally troubling is Sotomayor's record on the Second Amendment. This past January, the Second Circuit issued its opinion in Maloney v. Cuomo, which Sotomayor joined, ruling that the Second Amendment does not apply against state and local governments. At issue was a New York ban on various weapons, including nunchucks. After last year's District of Columbia v. Heller, which struck down DC's handgun ban, attention turned to whether state and local gun control laws might violate the Second Amendment as well.

"It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right." But contrast that with the Ninth Circuit's decision last month in Nordyke v. King, which reached a very different conclusion, one that matches the Second Amendment's text, original meaning, and history:

We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition." Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the "true palladium of liberty." Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

This split between the two circuits means that the Supreme Court is almost certain to take up the question in the near future. What role might soon-to-be Justice Sotomayor play? As gun rights scholar and Independence Institute Research Director Dave Kopel told me via email, Sotomayor's opinions "demonstrate a profound hostility to Second Amendment rights. If we follow Senator Obama's principle that Senators should vote against judges whose views on legal issues are harmful, then it is hard to see how someone who supports Second Amendment rights could vote to confirm Sonia Sotomayor." ...

Wall Street Journal: The 'Empathy' Nominee:

... In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, 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 who hasn't lived that life."

We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.

But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be. ...

Washington Times: A judge too far:

With his nomination of Judge Sonia Sotomayor for the U.S. Supreme Court, President Obama has abandoned all pretense of being a post-partisan president. While he may like to think of himself as a thoughtful moderate soaring above the issues that divide America, his actions reveal what hides under that hopeful lining.

Presidents usually nominate judges that espouse their philosophy. So what does this nomination tell us about Mr. Obama's true colors?

Even the liberal establishment worries that Judge Sotomayor tilts too far to the left. New Republic essayist Jeffrey Rosen reports that fellow liberals who have watched or worked with her closely "expressed questions about her temperament, her judicial craftsmanship, and... [they have said] she is 'not that smart and kind of a bully on the bench.' "

A suspiciously high number of her decisions have been overruled by higher courts. Wendy Long of the Judicial Confirmation Network said that record shows "she is far more of a liberal activist than even the current liberal activist Supreme Court." ...

Investor's Business Daily: Oppose 'empathy', defend the Law:

... Add to her ethnicity Sotomayor's rise from inner-city poverty after her father's death during her childhood, the White House's shrewd highlighting of her education at Catholic schools, plus her lifelong struggle against diabetes and it's hard not to find the political math coming out in her favor.

But Hispanic ethnicity didn't stop Senate Democrats, then in the minority, from spending 28 months successfully blocking Honduran-born Miguel Estrada's 2001 nomination to the U.S. Court of Appeals for the D.C. Circuit by President Bush.

Estrada's life story was inspiring too. Knowing little English, he immigrated to America at 17 to join his mother after his parents' divorce. A few years later, he was graduating with honors from both Columbia and Harvard Law.

A November 2001 internal memo from the staff of current Senate Majority Whip Richard Durbin, D-Ill., explained that Estrada was "dangerous" owing to his "minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment."

Consider the blatantly racist analysis — "he is Latino." In other words, conservative plus nonwhite equals "dangerous." It was exactly that kind of thinking that led Senate Democrats to turn the Clarence Thomas Supreme Court nomination hearings into an X-rated circus in 1991.

By contrast, a spirited effort against Judge Sotomayor would be in spite of her being Hispanic, not because of it, as was the case with the Democrats' assault on Estrada — the first-ever filibuster of a Court of Appeals nominee. ...

Thomas Sowell: Sotomayor: "empathy" in action:

... Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.

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?

If it were you who was going to be lying on that operating table with his heart cut open, you wouldn't give a tinker's damn about somebody's struggle or somebody else's privileges.

The Supreme Court of the United States is in effect operating on the heart of our nation-- the Constitution and the statutes and government policies that all of us must live under.
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Nothing demonstrates the fatal dangers from judicial "empathy" more than Judge Sotomayor's decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn't have "empathy" with those predominantly white males who had been cheated out of promotions they had earned.

Fellow 2nd Circuit Court judge Jose Cabranes commented on the short shrift given to the serious issues in this case. It so happens that he too is Hispanic, but apparently he does not decide legal issues on the basis of "empathy" or lack thereof. ...