Saturday, May 30, 2009

Sotomayor Exposed

Underneath the tidal wave of gushiness for Her Honor there appear to be some real coral heads upon which her nomination should (but probably will not) flounder.

First is her basic temperament as a judge. Multiple sources indicate that she is a bully on the bench. Here are quotes from two different sources that speak to this:
Lawyers who have argued cases before Supreme Court nominee Sonia Sotomayor call her "nasty," "angry" and a "terror on the bench," according to the current Almanac of the Federal Judiciary -- a kind of Zagat's guide to federal judges
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")
Allegations such as this have derailed previous Supreme Court nominees, but I do not expect that to be the case this time. Too many Republican Senators will play by the unwritten rules rather than "Bork" Her Honor as she should be.

Second is her view of the role of the judiciary in the US system of government. Her comment here about appeals judges being expected to make policy is most telling. Her immediate "denial" or "explanation" is clearly a posterior-covering exercise as evidenced by her comments about it being on tape. IMNSHO she unabashedly considers herself to be an activist judge, out to make law and policy. Not a big surprise, given her hypocritical nominator and his plain statements about his intent to nominate just such judges, but it is something that should be questioned during her nomination hearings, and this time with some tenacity as there is now more evidence of her judicial activism.

Third is the role of her ethic and social background in her behavior as a judge. One has to be deaf, dumb and blind to have not heard about her "wise Latina woman" comment. Ill advised, yes, but I actually do not have a problem with judges using their background and experience to help them to understand the nature and facts of the cases before them; that is part of being human. Where it becomes an issue is when ones race or ethnicity causes one to ignore the clear facts in a case or disregard settled law as the basis for judgment. I've not seen evidence that she has gone this far but the question should be asked and examined.

Frankly, I'm more concerned about her membership in "La Raza". Reportedly La Raza has "promoted driver's licenses for illegal aliens, amnesty programs, and no immigration law enforcement by local and state police" and has supported the more radical secessionist Movimiento Estudiantil Chicano de Aztlan. Ms. Sotomayor's level of involvement in and support for the policies of La Raza should be vigorously examined during her hearing, but I doubt it will be.

Finally is her actual competence as a judge. Clearly she has the requisite education and has punched all the right tickets to be on the Supreme Court, however anyone that has worked in the real world knows that such types of qualifications do not necessarily guarantee actual competence. There is evidence that she actually is not that good a judge. Three of five of her rulings that have gone to the Supreme Court have been reversed and it appears likely a fourth one will be as well. Furthermore her written opinions are reported to be,
"not especially clean or tight, and sometimes miss[ing] the forest for the trees."
In addition:
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants.
Clearly there are concerns here that in my opinion should disqualify her. Unfortunately it appears they are being overlooked in the arguments about the more sensational and inconsequential aspects of her nomination.

In the end what I'd like to see is the members of the Senate Judiciary Committee stringently examine Ms. Sotomayor's qualifications, temperament, credentials and competency to be on the US Supreme Court. If they do so in a fair and historically consistent manner I am confident that some or all of them will vote against her. Similarly the members of the full Senate should consider and vote against her nomination when it comes to a full vote. The odds of this happening I think are less than zero.

On the other hand, I do not think a filibuster against her nomination should be attempted at this time. It is likely to fail and there are other more winnable battles in the future for which such large artillery should be saved.

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