While the pundits and talking heads on both sides of the Sotomayor niomination “draw lines in the sand,” it becomes increasingly obvious that this has the potential to become some compelling television come July. But, if you are going to get your news from the likes of Sean Hannity, Tom Tancredo, Glenn Beck, Rachel Maddow or Chris Matthews, then you will be somewhat misinformed. While the former three have a conservative agenda and would oppose Jesus Christ if he were nominated to the bench by Obama, the others are simply mouthpieces for the administration. Notice how the liberal commentators concentrate on her “inspiring background,” the alleged “bipartisan choice” because she was forced upon Bush I in some byzantine agreement regarding court appointments back then. Notice how they phrase criticism of her as conservative racism and sexism. On the other hand, the conservatives have tried, convicted and sentenced her before she has even opened her mouth before the Senate hearings. They are resorting to the very tactics they accused the Democrats of during the Bush II administration with judicial appointments. Is this conservative pay back, or conservative hypocrisy?
Most of the criticism thus far has been focused on a couple of statements made during speeches at Duke University and at Cal-Berkeley. Also, her involvement in the Ricci case- the New Haven firefighter case- has come under fire as evidence that she is an affirmative action-loving flaming liberal. Coupled with her statements, perhaps taken out of context, perhaps not, it is leading some to conclude that she would be an activist jurist willing to “even the playing field” with respect to minorities by judicial fiat. Some have claimed that her rate of reversal of her decisions before the Supreme Court lead to questioning her intellect and understanding of the law. In reality, of the 150 cases authored by Sotomayor, five have ended up before the Supreme Court (2% of her decisions). Of those five, three have been reversed, one upheld but they rejected her reasoning, and the fifth was upheld. This “reversal rate” is actually better than that of Samuel Alito at the time. Another case she authored may yet end up before the Court- Maloney vs. Cuomo- which challenges New York’s law against the possession of numchucks. In that case, she relied on the Court’s 1886 decision in Presser vs. Illinois rather than the more recent decision in Heller vs. District of Columbia– the DC handgun case. The only reason it may end up before the Supreme Court is that the Ninth Circuit, in a similar case, used the Heller standard and came up with a different result. Because there is disagreement among circuits, it is a good recipe for a Supreme Court review.
Regarding the Ricci case, the results of a test for fire department promotions were thrown out by the city allegedly because no minorities would have qualified for promotion. On its face, there is certainly a fairness issue here with respect to the white fire fighters who studied and passed the test with the full expectation they would receive promotions. Yet, there are many pundits out there who see this in stark terms- its unfair- rather than understanding that this case has numerous constitutional questions and subtleties. It is doubtful that those who in knee jerk fashion cry for her head in this decision even know what Title VII is let alone such legal intricacies as “the four-fifths rule,” when “strict scrutiny” applies, or the “rule of three.” This appeal is less about the fairness of the lower court’s ruling than it is about the legality of the City’s actions.
In the summary judgment of the Second Court of Appeals, it would be hard to find evidence of Sotomayor’s reverse racism tendencies on the basis on some 40+ words, the most controversial of which are that the District Court’s decision was “…thorough, thoughtful, and well-reasoned.” After reading the oral transcript of the Supreme Court, this is not as clear cut a case as conservatives make it to be. Whether that is because the judicial branch muddles the issue or because Congress writes byzantine legislation is of debate (expect a 5-4 decision one way or the other). For the sake of conservatives, they better hope the decision goes their way or they lose a huge bullet in their argument against her. While it is true this was a cheap, stealthy “decision” that failed to address any of the issues of the plaintiffs other than to affirm the lower court decision, without explaining her reasoning one cannot label her anything. However, since the decision should be announced prior to her confirmation hearings, it will not be a “hypothetical” she can dodge. Explaining her rationale and her reasoning are certainly fair game in questioning of her before the Judiciary Committee.
Sotomayor needs to explain her comments made at Duke and Cal-Berkeley and her reasoning in the Ricci case and, at this point, until she does, these factors should not be the crux of the criticism against her. Instead, there are two other more disturbing factors that need further clarification and have a greater connection to her thought processes, beliefs, and possible direction she will take once on the Supreme Court. The first is her alleged association with the National Council of La Raza. Recently, I heard a liberal commentator explain that “la raza” does not translate to literally “the race,” but to “community.” Yes, and “nation” translates into “community” in Aryan Nation, right? They (La Raza) bill themself as a Hispanic advocacy group. Unlike what the NAACP is to blacks, La Raza is more like what ACORN is to blacks. When there are those big immigration rallies out there, it is usually La Raza that organizes them. And there is no doubt that there are certainly radical elements under the umbrella of the NCLA. One is MEChA, which is some Spanish abbreviation for a movement that believes the American southwest is the home of the mythical founder of the Aztecs and therefore they want a Hispanic state established there. One leader even went so far as to say that if that involves “killing the gringos,” then so be it. During the immigration protests, they were the ones out there carrying the signs that said “Pilgrim Go Home.” This is pretty hateful speech yet you won’t find this group on any list of the Southern Poverty Law Center hate groups. Additionally, both MEChA and NCLR have funded a Chicano separatist private charter school in Los Angeles. Not one to accuse Ms. Sotomayor of belonging to a hate group, but at the very least she needs to explain the degree of her association with the group. At the most, she needs to forcefully condemn the statements of the more radical elements within the group and disavow them. There is a legitimate point to be made here. Remember the “outcry” by some liberals over Alito’s connections to some conservative publication at Princeton? A Google search of the controversy turns up over 3000 articles about Alito’s alleged connection to what one publication, Salon, refers to as “conservatism’s ugly side”- a defunct group for over 20 years at Princeton. La Raza is not a defunct group in any sense of the word and a strong case can be made that they, or elements of La Raza, represent “liberalism’s ugly side.” Hate cuts both ways, a truism obviously lost on liberals. It will be interesting to see how many articles are returned in ten years when someone searches for Sotomayor’s connection to the NCLR.
The final area of real concern is Sotomayor’s dissenting (thank God) opinion in a 2nd Circuit case entitled Hayden vs. Pataki in 2006. In this case, Hayden was a paroled felon (he stabbed a sanitation worker) and under New York law, was denied the right to vote. He is a leading advocate in New York to enfranchise not only ex-convicts, but also those still incarcerated. His theory is that because blacks are disproportionately represented in the prison population, to deny them voting rights is a violation of the Voting Rights Act of 1965. In her dissent, using language cloaked in strict constructionism, Sotomayor states in her dissent: “These two propositions (the Voting Rights Act and the New York law at issue) should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.” In other words, denying felons- whether on parole or in jail- the right to vote is a violation of the Voting Rights Act and should be stricken. While the wording of the Voting Rights Act is certainly “unambiguous” as Sotomayor claims, and Congress clearly has the authority to enact such laws under the 14th and 15th Amendment, Ms. Sotomayor seems to conveniently forget the unambiguous language of Section 2 of the 14th Amendment which, being part of the Constitution, takes clear priority over any Congressional act. That section states that the right to vote cannot be denied “…except for participation in rebellion, or other crime…” It says nothing, in unabiguous terms, about those “other crimes” being related to the recent rebellion, the Civil War. Does Sotomayor take the position that the Voting Rights Act supercedes the “unambiguous” wording of the 14th Amendment? Some will argue that this a historical clause that applies specifically to the Civil War, but what can be more related to the results of that war than the 13th amendment outlawing slavery but which also allows “involuntary servitude except as punishment for crime whereof the party shall have been duly convicted…” If involuntary servitude is permissible for convicted criminals, regardless of race, the right of states to disenfranchise felons, regardless of race, is clearly permissible given the “unambiguous” language of the 13th and 14th amendments which, Ms. Sotomayor should be reminded, take precedence over the Voting Rights Act. To follow through on Hayden’s demands and Sotomayor’s belief, politicians would be campaigning in cell blocks and voting machines would be delivered to prisons and jails. If Sotomayor really believes the words she wrote in the Hayden dissent, then she is using the literal words of a legislative act, irrespective of constitutional words to the contrary, to further a purely political agenda. This, more than her dissent in the Maloney case, or her summary judgment in Ricci would have more far-reaching consequences than the other two combined times five. Again, Republican Senators would be well-advised to question her rationale in deciding as she did and whether she believes the right of states to list the qualifications of voters are over-ridden by the Voting Rights Act as concerns prisoners and ex-convicts. Her answer in this area will be interesting to watch and note.
This nominee will most likely win confirmation to the Supreme Court. Of the thirty cases I have personally read of Sotomayor- whether she authored them or she joined the majority opinion- one can determine that her writing is devoid of rhetorical flourishes and there is nothing inherently wrong with that. But while the mainstream media portrays her as a mirror of Obama with this talk of “empathy” and all, she is more a mirror of Obama in that she is a stealthy nominee. However, like Obama, she most likely does have an “unwritten” or “unstated” liberal agenda. Will she shift the balance on this Court? Not really likely, but exposing her hidden hypocrisies is important to set up the importance of the next battle. For the next several years, say a prayer for the health of Roberts, Alito, Scalia, Thomas and Kennedy.