Disappointed with Sotomayor
By Jeff Knox
(August 7, 2009) The confirmation of extreme leftist (and unimpressive jurist) Sonia Sotomayor to a seat on the Supreme Court is bad news to supporters of the Constitution in general and the nation’s gunowners in particular. Judge Sotomayor has demonstrated throughout her career on the Federal Appeals Court bench that she has much more regard for her own "feelings" and "sensibilities" than she has for the Constitution or even court precedent. Judge Sotomayor has repeatedly dismissed important constitutional questions out of hand, with no constitutional review and total disregard for established precedent or accepted principles of jurisprudence. Judge Sotomayor has made clumsy attempts to conceal this cavalier behavior behind flawed and incomplete citation of precedents which fall far short of supporting her decisions. What’s worse, she has routinely been supported in her disingenuous practices by one or more of her colleagues in the Second Circuit where she has served for the past 15 years. As Federal Appeals Courts standardly operate with three-judge panels, Judge Sotomayor’s erroneous decisions could only prevail if one or both of the other judges on the panel agreed.
It frustrates me that I was unable to devote more time and energy to informing readers about the Sotomayor debate. Other issues and duties were making high demands of my time and a thorough analysis of a judge’s record is an arduous and time-consuming task. The political reality that stopping the confirmation was virtually impossible – particularly in light of NRA’s tepid, early response to the nomination – probably weighed in on my aversion to the cause as well. Eventually NRA did come out and take a strong stand – at least they publicly announced a strong stand, how they will actually play out the hand might be a far different story – but the confirmation vote fell almost completely down party lines with Democrats supporting their president’s nominee and most Republicans opposing.
What struck me during the confirmation process was the focus on just a few public statements (damning as they were) and a very few court opinions. What seemed to be missing was a thorough review of Sotomayor’s written opinions and, perhaps more importantly, her dissents. Granted, judging judges – and explaining those judgments – is not easy, but I would have expected to see at least some attempts at it. The reason I place particular emphasis on dissents is that I believe it is in dissents that the details of a judges positions and philosophy are often most evident.
Sotomayor’s rulings on Second Amendment issues were not, as lawyers say, prima fascia evidence of her opposition to, or disregard for the Second Amendment. Appeals Courts operate under certain rules of precedent known as "stare decisis" which means to "stand on what’s decided." In other words, if a question has already been answered in that court or the Supreme Court, that answer is the answer and that’s that. Strictly adhering to stare decisis could be considered the mark of a "conservative" jurist. Similarly, deviating from stare decisis could be considered "activist." In both Second Amendment decisions in which Sotomayor participated, the opinion rested heavily upon stare decisis. Where criticism is justified is in the total lack of serious review of underlying questions, discussion of Supreme Court decisions subsequent to the cited precedents, and any suggestion that the 19th century precedents cited might be outmoded or ripe for reconsideration by the Supreme Court. This lack of thoughtful discussion does suggest disrespect for the underlying principles and the Constitution itself.
As noted, in the end the decision regarding Sotomayor’s confirmation was based on politics, not substance and that is disappointing. While Judge Sotomayor’s philosophical positions can be compared to Justice Souter’s, whom she is replacing, I do not believe that she has nearly the intellectual capacity of any of the current Justices (or almost any of the previous Justices) and I think time will reveal two things: Justice Sotomayor will prove to be much more "liberal" than was Justice Souter, and Justice Sotomayor will prove to be an embarrassment all the way around.
The ballyhooing about her being the first Hispanic on the Court is just foolish because I’m sure she is not going to live up to the demands of being a "first." "Firsts" must be carefully chosen to be exceptional representatives of their group. While I have issues with some of the decisions and philosophies of Thurgood Marshall and Sandra Day O’Connor, they were both eminently qualified and requited themselves well on the bench. Clarence Thomas and Ruth Bader Ginsburg likewise as "seconds" have proven to be stellar representatives of their race and sex. I don’t think Justice Sotomayor will be able to rise to the challenge and will be a general disappointment.
To see how your senators voted on Sotomayor’s confirmation, look for this article at www.FirearmsCoalition.org and follow the link.
Permission to reprint or post this article in its entirety is hereby granted provided this credit is included. Text is available at www.FirearmsCoalition.org. To receive The Firearms Coalition’s bi-monthly newsletter, The Knox Hard Corps Report, write to PO Box 3313, Manassas, VA 20108.
©Copyright 2009 Neal Knox Associates