Diary

Why I Would Have Voted Against Sonia Sotomayor

I am running for the United States Senate from Ohio because I believe in the fundamental principles of America.  Our founding fathers in their infinite wisdom established three completely different and distinct branches of government.  The Legislature, which is to represent the people, and pass legislation that the people want; the Executive branch, which represents the American people with foreign governments, and sets the agenda for the legislature, and the Judiciary, whose job it is to apply the laws of the United States fairly and evenly to all of the people.

If I had been in the United States Senate on August 6, 2009, I would have voted against the confirmation of Sonia Sotomayor as an Associate Justice of the United States Supreme Court.  Why would I have opposed her appointment?  The reasons are pretty simple.

First of all, although Justice Sotomayor tried very hard to change her judicial background at the Senate confirmation hearings, it is obvious to me that throughout her career she has indicated that a judge should allow her personal views and experiences to influence judicial outcomes.  A fair reading of her past rulings and comments at various events makes it apparent that she has judged cases and made rulings based on the prism through which she views her life.  The fact that her background and life experiences should not enter into her judicial rulings has evidently been lost on her, or if she was aware of how a judge is expected to decide their cases, she has chosen to ignore those principles.  America can’t afford this type of judicial temperament on the most important Court in our country.

Second, I am a strong believer and supporter of the Second Amendment.  I believe that the Founding Fathers meant exactly what they wrote: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  That is very clear to me.  Yet Judge Sotomayor, in an opinion in January, 2009, Maloney v. Cuomo, ruled that the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.  The ruling from the Second Circuit cited an 1886 case, Presser v. Illinois. But Judge Sotomayor and her liberal colleagues ignored the 2008 Supreme Court case of Heller v. District of Columbia, in which the Court said the Second Amendment “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation.  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”  Unfortunately for Americans, Judge Sotomayor seems to have forgotten about this ruling.

Third, Judge Sotomayor failed to apply the law fairly in the case of  Ricci v. DeStefano. It took the United States Supreme Court to undo the damage done by Judge Sotomayor in the Ricci case.  As I’m sure you remember, Judge Sotomayor, as a member of the Second Circuit Court of Appeals, was part of a majority opinion that upheld the decision of the City of New Haven, in 2003, to scrap the results of a promotional firefighters exam because no black candidate passed the tests.  Supreme Court Justice Anthony Kennedy wrote the majority opinion for the Supreme Court in overturning the Second Circuits decision.  Justice Kennedy wrote “No individual should face workplace discrimination based on race.  The exam process was open and fair.  The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the city’s refusal to certify the results.”

I agree with Frank Ricci, who called the Supreme Court’s ruling a “vindication” for himself and his colleagues.  I also find myself in agreement with Mr. Ricci, when he said “Americans have the right to go into our federal courts and have their cases judged based on the Constitution and our laws, not on politics and personal feelings.”  Unfortunately, Judge Sotomayor failed to understand or recognize this basic right.

Fourth, Judge Sotomayor upheld a government’s taking of private property in Didden v. Port Chester. The Didden case is one that I strongly disagree with.  The facts are pretty simple.  In 1999, the village of Port Chester, N.Y., established a “redevelopment area” and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it.  In 2003, two property owners approached Wasser for permission to build a CVS pharmacy on land they owned inside the zone.  Wasser demanded that they pay him $800,000 or give him a 50% partnership interest in the CVS project.  His threat was to have the local government condemn the land if his demands weren’t met.  Well, they weren’t and the very next day that property was condemned.

When the property owners challenged the condemnation in federal court, on the grounds that it was not for a “public use” as the Fifth Amendment requires.  They went on to state that “out and out extortion does not qualify as a public use.  Amazingly, a Second Circuit panel, which included Judge Sotomayor  upheld the taking.  Although the Second Circuit opinion was based largely on procedural issues, they also were obligated to follow the clear language of the United States Supreme Court in Kelo v. City of New London. In the majority opinion written by Justice John Paul Stevens, the United States Supreme Court stated “the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit” was not enough to count as a “public use.”  It seems pretty clear, doesn’t it?  But once again Judge Sotomayor and her liberal Second Circuit colleagues ignored the law in a clear attempt to legislate from the bench.

Fifth, Judge Sotomayor has clearly indicated that foreign law should be considered and can “inform our understanding” of U.S. Constitutional law.  Judge Sotomayor wrote in the forward to a 2007 book “The International Judge” “the question of how much we have to learn from foreign law and the international community when interpreting our Constitution is . . worth posing.”  No opinion written or joined by Judge Sotomayor has been discovered where she relied upon foreign or international law to interpret the meaning of the U.S. Constitution.  But in a 2009 speech made by Judge Sotomayor to the Puerto Rican chapter of the American Civil Liberties Union, she made it clear that the Court’s citation to foreign and international law was proper and indeed laudable since “international law and foreign law will be very important in the discussion of how to think about unsettled issues in our own legal system.”  That is enough for me to conclude that if given the opportunity, she would consider foreign law in deciding cases before her.

While I appreciate the Judge’s personal life story, and applaud a Country where she was given the chance to succeed, I salute the thirty-one Republican Senators who stood by their values and principles and voted against her confirmation to the United States Supreme Court.

Cross Posted at Tom Ganley.com

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