Sotomayor Poll Numbers Comparable to Harriet Miers'

A new CNN poll by the Opinion Research Corporation indicates that 40% of Americans do not want the Senate to confirm Sotomayor's appointment to the Supreme Court, which is only 3% lower than the portion of the public that opposed Harriet Miers' confirmation before she withdrew her nomination.

Of course these findings are being completely ignored by the mainstream media, who are too busy smearing Frank Ricci, the lead plaintiff in the case of Ricci v. DeStefano, to report legitimate stories. Maybe he and Joe the Plumber can start a club for ordinary Americans who have had to endure the wrath of the liberal media after daring to question their ideology.

Two Firefighters Listed as Witnesses for Sotomayor Hearing

The list of witnesses invited to testify at the Sotomayor hearings next week has just been released by the Judiciary Committee (hat tip Jonathan Adler at Bench Memos). Two firefighters involved in the Ricci case, including lead plaintiff Frank Ricci and Lieutenant Ben Vargas, are listed as witnesses for the Republicans. Incidentally, Vargas was the only minority firefighter (he is of Puerto Rican decent) to join Ricci and the 18 other firemen who scored highly on the New Haven exam in his discrimination suit that made its way to the Supreme Court.

Other notable witnesses on the GOP side include National Rifle Association board member and former president Sandy Froman, Center for Equal Opportunity President Linda Chavez, and Dr. Charmaine Yoest of Americans United for Life. These selections suggest that Sotomayor's views on the Second Amendment, racial preferences, and abortion will be featured as prominent themes in the hearings, at least on the minority side.

For the Democrats, the witness list contains a number of law enforcement officials, such as National President of the Fraternal Order of Police Chuck Canterbury and former FBI director Louis Freeh. It appears that liberals hope to tout Sotomayor's "tough on crime" record to win the favor of Republicans who are wary of her antipathy toward the Second Amendment. The list is also heavily weighted with Hispanic and civil rights leaders, no doubt to burnish her credentials as a "wise Latina." One of the most interesting choices is David Cone, a former MLB pitcher. I'm not entirely certain how Sotomayor's ruling that "saved baseball" by ending the 1995 strike is relevant to her qualification for the Supreme Court, but hopefully the Democrats will clear that one up for us next week.

26 Gun Rights Leaders Call for Sotomayor No Vote

In a letter released today and attached below, more than two dozen leaders of the Second Amendment community from across the nation urged senators "not to confirm Judge Sonia Sotomayor as the next associate justice of the United States Supreme Court," citing their "grave concern" over her Second Amendment record.

The individual signers include 14 members of the National Rifle Association's Board of Directors and Executive Council, including two past presidents of the NRA. Another five signers head the NRA state affiliate in their respective states - Pennsylvania, New York, Arizona, New Jersey and Massachusetts. The signers also include the heads of other leading national Second Amendment organizations, including the Second Amendment Foundation, the Gun Owners' Action League, and the Citizens Committee for the Right to Keep and Bear Arms.

Notably, many of the signers represent red and purple states with one or more Democratic senators. Those signers including Sheriff Jay Printz of Montana, Wayne Anthony Ross of Alaska, Jon Standridge of Arkansas, Robert Sanders of North Carolina, John Lee of Pennsylvania, Tom Gresham of Louisiana, Ken Blackwell of Ohio, and Evan Nappen and Rep. Jennifer Coffey of New Hampshire. Given Sen. Kirsten Gillibrand's (D - NY) proud trumpeting of her 100% voting record with the NRA, the presence of two signers from New York - including the President of New York State Rifle and Pistol Association - is also significant.

Curt Levey, Executive Director of the Committee for Justice, commented today on the significance of the letter, especially for red and purple state Democrats:

"Today's letter is a game changer politically. For the first time in the history of judicial confirmation fights, the Second Amendment community is playing a big role. Because it's the one community that can send red state Democrats running for cover, this letter and the grassroots opposition to Sotomayor that it represents put her confirmation in doubt. Red and purple state Democratic senators know that if they vote to confirm Sotomayor, they will face a lot of unhappy constituents back home. Those senators will have to explain to their constituents why they endangered their fundamental rights by putting someone so hostile to the Second Amendment on the Supreme Court. And that's after they finish explaining away Sotomayor's embrace of racial preferences and disdain for property rights."

The following signers have provided their contact information and invite reporters to contact them:

Sandra Froman, Esq. - (520) 906-5587
Ken Blackwell - (614) 946-1908
Grover Norquist - (202) 785-0266
Sheriff Jay Printz - (406) 381-0485
Alan Gottlieb - (425) 454-4911
Tom King - (518) 424-1349
Tom Gresham - (318) 663-1358

LETTER RELEASED TODAY:

July 7, 2009

Dear Senators:

As Americans who have dedicated themselves to protecting the Second Amendment right of U.S. citizens to keep and bear arms, we urge you not to confirm Judge Sonia Sotomayor as the next associate justice of the United States Supreme Court.

It is extremely important that a Supreme Court justice understand and appreciate the origin and meaning of the Second Amendment, a constitutional guarantee permanently enshrined in the Bill of Rights. Judge Sotomayor's record on the Second Amendment causes us grave concern over her treatment of this enumerated constitutional right.

Last year, the Supreme Court decided the landmark case District of Columbia v. Heller, holding that the Second Amendment guarantees to all law-abiding, responsible citizens the individual right to keep and bear arms, particularly for self-defense. Following Heller, the Supreme Court is almost certain to decide next year whether the Second Amendment applies to states and local governments, as it does to the federal government (see NRA v. Chicago and McDonald v. Chicago.)

While on the Second Circuit, Judge Sotomayor revealed her views on the right to keep and bear arms in Maloney v. Cuomo, a case decided after Heller, yet holding that the Second Amendment is not a fundamental right, that it does not apply to the states, and that if an object is "designed primarily as a weapon" that is a sufficient basis for total prohibition even within the home. Earlier in a 2004 case, United States v. Sanchez-Villar, Sotomayor and two colleagues perfunctorily dismissed a Second Amendment claim holding that "the right to possess a gun is clearly not a fundamental right." Imagine if such a view were expressed about other fundamental rights guaranteed by the Bill of Rights, such as the First, Fourth and Fifth Amendments.

Surprisingly, Heller was a 5-4 decision, with some justices arguing that the Second Amendment does not apply to private citizens or that if it does, even a total gun ban could be upheld if a "legitimate governmental interest" could be found. The dissenting justices also found D.C.'s absolute ban on handguns within the home to be a "reasonable" restriction. If this had been the majority view, then any gun ban could be upheld, and the Second Amendment would be meaningless.

The Second Amendment survives today by a single vote in the Supreme Court. Both its application to the states and whether there will be a meaningfully strict standard of review remain to be decided by the High Court. Judge Sotomayor has already revealed her views on these issues and we believe they are contrary to the intent and purposes of the Second Amendment and Bill of Rights. As Second Amendment leaders deeply concerned about preserving all fundamental rights for current and future generations of Americans, we strongly oppose this nominee, and urge the Senate not to confirm Judge Sotomayor.

Sincerely,

Sandra S. Froman, Esq.
Former President, National Rifle Association of America
NRA Board of Directors and Executive Council

Landis Aden
President, Arizona State Rifle & Pistol Association

Scott L. Bach, Esq.
President, Association of New Jersey Rifle and Pistol Clubs

The Honorable Bob Barr
Former Congressman, 7th District of Georgia
NRA Board of Directors

Ken Blackwell
Senior Fellow, Family Research Council
NRA Board of Directors

Rep. Jennifer R. Coffey, NREMT-I
Representative, New Hampshire State House of Representatives
Representative, New Hampshire General Court
Director and National Coordinator, Second Amendment Sisters, Inc.
Advisor, New Hampshire Pro-Gun Advisory Council

Robert K. Corbin, Esq.
Former Attorney General, State of Arizona
Former President of NRA and current member of NRA Executive Council

Jim Dark
Former Executive Director, Texas State Rifle Association
NRA Board of Directors

Alan M. Gottlieb
Chairman, Citizens Committee for the Right to Keep and Bear Arms

Tom Gresham
Host of “Gun Talk”
Nationally syndicated radio talk show

Gene Hoffman, Jr.
Chairman, The Calguns Foundation

Susan Howard
NRA Board of Directors

Tom King
President, New York State Rifle and Pistol Association
NRA Board of Directors

John T. Lee
President, The Pennsylvania Rifle and Pistol Association

Owen P. Buz Mills
President, Gunsite Academy, Inc.
NRA Board of Directors

Evan F. Nappen, Esq.
Corporate Counsel and Director, Pro-Gun New Hampshire, Inc.

Grover G. Norquist
President, Americans for Tax Reform
NRA Board of Directors

Sheriff Jay Printz
Retired Sheriff and Coroner, Ravalli County, Montana
Successful plaintiff in U.S. Supreme Court case Printz vs. U.S.
NRA Board of Directors

Todd J. Rathner
President, T. Jeffrey Safari Company
NRA Board of Directors

Wayne Anthony Ross, Esq.
President, Alaska Gun Collectors Association
Former Attorney General, State of Alaska
NRA Board of Directors

Don Saba, Ph.D.
Sierra Bioresearch
NRA Board of Directors

Robert E. Sanders, Esq.
Former Assistant Director (Law Enforcement), Bureau of Alcohol, Tobacco and Firearms
NRA Board of Directors

Jon A. Standridge
Brigadier General (USA Ret.)

Joseph P. Tartaro
President, Second Amendment Foundation

Jim Wallace
Executive Director, Gun Owners’ Action League


Current and past affiliations are for identification purposes only.

PRLDEF Documents Irrelevant? Not According to the Questionnaire

Senator Patrick Leahy, a Democrat and Chairman of the Senate Judiciary Committee, recently joined fellow committee member Senator Jeff Sessions' request for more documents detailing the activities and policy positions of the Puerto Rican Legal Defense and Education Fund while Supreme Court nominee Sonia Sotomayor was a member of its Board of Directors. Their appeal was met with a dismissive letter from White House Counsel Greg Craig.

In the letter, he writes:

The documents you are now seeking are not relevant to her nomination, just as similar documents not written, edited, or approved by past nominees have not been viewed as relevant to the Committee's consideration of those nominees.

Perhaps Mr. Craig should reread (or read, as the case may be) the Judiciary Committee's questionnaire, which was sent to Judge Sotomayor and requires her to supply certain documents to the Committee for review.

Question 12 Part b specifically states:

Supply four (4) copies of any reports, memoranda, or policy statements you prepared or contributed to the preparation of on behalf of any bar association, committee, conference, or organization of which you were or are a member or in which you have participated as defined in 11a [PRLDEF is listed in her response to this question]. Include reports, memoranda, or policy statements of any working group of any bar association, committee, or conference which produced a report, memorandum, or policy statement, even where you did not contribute to it.

Now I am not one to judge whether or not the inclusion of such documents in confirmation hearings is appropriate, but no one can deny the question explicitly demands that the nominee provide these documents to the Judiciary Committee. The Obama administration's attempt to block their release suggests that either they contain potentially controversial information, or that the administration does not want to provide Republicans with more files to examine and thus more reason to demand that the hearings be delayed. Neither of these options should be considered a credible excuse for their behavior.

Sotomayor: Likely to Rival Ginsburg as Most Liberal Nominee in 40 Years

The National Journal has an article containing an interesting chart that illustrates the perceived ideological leanings of Supreme Court nominees using a system developed by Jeffrey Segal.

Segal will calculate current nominee Sonia Sotomayor's score by continuing to evaluate editorials from five major newspapers; including the New York Times, Washington Post, Wall Street Journal, Chicago Tribune and Los Angeles Times, until the full Senate votes. As of now, analysis shows that Sotomayor "likely rivals Ruth Bader Ginsburg as the most liberal Supreme Court nominee of the last 40 years." According to the data, Ginsburg ranks as the 17th most liberal justice since the presidency of Franklin D. Roosevelt, with a score of 0.68 (on a scale of 0-1, with 0 being the most conservative).

Public Support for Sotomayor Falls After Supreme Court Reversal

A new Rasmussen poll shows that public support has gone from a plurality supporting her confirmation to a plurality opposing her confirmation in the two days since the release of the Supreme Courts decision in Ricci.

A heavily publicized U.S. Supreme Court reversal of an appeals court ruling by Judge Sonia Sotomayor has at least temporarily diminished public support for President Obama's first Supreme Court nominee.

The latest Rasmussen Reports national telephone survey, conducted on the two nights following the Supreme Court decision, finds that 37% now believe Sotomayor should be confirmed while 39% disagree.

Two weeks ago, the numbers were much brighter for the nominee. At that time, 42% favored confirmation, and 34% were opposed.

Ed Morrissey dives into the crosstabs and shows that the internal numbers may be even more troubling for Obama's first SCOTUS nominee.

As usual, the crosstabs tell an interesting story. First, the most damaging numbers may not come from the confirmation question at all, which is a statistical split. Her favorability rankings look simply terrible for someone supposedly outside the political arena. She has a net favorability of -13, with 49% having an unfavorable view of Sotomayor. She has a -8 among women (47%-39% unfavorable) and a -16 among men (53%-37% unfavorable). Majorities find her unfavorable in almost every income bracket, with the exception of <$20K and $60-$75K.

That said, it is now becoming increasingly difficult for Obama to make the case the she is a moderate jurist or that he is not the extreme liberal that many of his critics paint him to be.

5-4 Decisions Then and Now

Democrats are using the 5-4 decision in Ricci as some sort of vindication for Sotomayor or at least a reassurance that she is within the liberal mainstream (even though I highlight that it was really a 9-0 reversal below).  What is odd is that not long ago the 5-4 decisions in the terrorism cases, such as Hamdan, weren't evidence that Bush was within the mainstream of the terrorism/detention debate; instead it was evidence that the lawless Bushitler was shredding the Constitution and devouring small children by the handful or something along that line.  I guess we can file this away in the liberal hypocrisy file along with the left's newfound comfort with Presidential signing statements.

Sotomayor Overruled 9-0

Despite the 5-4 decision handed down yesterday in Ricci, the Court actually reversed Sotomayor and her Second Circuit colleagues 9-0.  Adding insult to injury, Sotomayor was also overruled by the Obama Administration as pointed out by Stewart Taylor.

What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might filea "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed. ...

In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. (emphasis added)

The only reason Justice Ginsburg reached a conclusion on the merits is because the Court had reached an ultimate conclusion in granting the firefighters summary judgement.

Contrary to the Sotomayor-endorsed opinion, the Ginsburg dissent states (on page 19) that an employer's decision to jettison a promotional test under circumstances like this case would be legal only if the employer had "good cause to believe the [test] would not withstand examination for business necessity."

Ginsburg added (on page 26 and page 33) that "ordinarily, a remand for fresh consideration" would be proper because the lower courts (including Judge Sotomayor) had not carefully considered the evidence of "pretext" and racial politics. (emphasis added)

Even though all nine Justices and the Obama Administration were in agreement that Sotomayor should have been reversed the spin-machine has not stopped trying to paint her as a run-of-the-mill liberal judge.  The following quotes represent an example of this spin.

"The main charge against Judge Sotomayor is that she will be an activist judge, but this decision clearly shows that she won't," said Sen. Charles Schumer, D-N.Y., who is part of the Democratic leadership and sits on the Judiciary Committee.

"The results in this case won't change things a wit... in fact it bolsters [the claim] that she is mainstream," Schumer added in a conference call.

"Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," Leahy said. He added that a ruling for the firefighters who were suing New Haven, Conn., over their withheld promotions "would have been judicial activism contrary to clearly settled and longstanding Second Circuit precedent. The Second Circuit was bound by this precedent and not free to adopt a new interpretation of the law, as the Supreme Court has done today."

The bottom line is Sotomayor and her Second Circuit colleagues wanted to sweep the issue under the rug, refusing to even allow a trial, because it presented a difficult set of facts for them to continue advancing their preferred identity/grievance agenda.  This underhanded attempt was thoroughly rejected by all nine members of the Court as well as the Obama Administration.  Perhaps the best rebuttal to this incoherent nonsense put forth in her defense is the close to Justice Alito's concurrence.

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

 

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them. (emphasis added)

Update: RCP links to Ed Whelan who echoes the points I make above.

Biased Headline in NY Times Piece on New Haven Fire Fighters' case

Notice that the NY Times piece mentions only white fire fighters when the plaintiffs were both white and Hispanic firefighters. The same is true for their first paragraph. It isn't until the seventh paragraph that they mention Hispanics, and even then they mention only one Hispanic was denied promotion when there were actually two of them.

New Fox News Op-ed: Serious Questions About Sotomayor and Race: With today's Supreme Court ruling there are even more questions about Sonia Sotomayor

My new piece at Fox News starts this way:

With the Supreme Court narrowly striking down Judge Sonia Sotomayor's decision in the New Haven fire fighter's case, it emphasizes the importance of a single vote and there are renewed questions about her judgment on race. It brings back into focus not only her comments on the superiority of certain racial groups and women, but when combined with her recent comments on the Belizean Grove club indicate a very selective and self serving decisions on deciding when discrimination is occurring.

Judge Sonia Sotomayor can't take back her seven speeches over a decade where she talked about women's (or Latina women's) judgment being superior to men' (or white men's). But, about a week ago, almost a month after her Supreme Court nomination, Judge Sotomayor resigned as a member of the extremely exclusive all-woman club, the Belizean Grove. If she were a Republican man, such a withdrawal would have come too late. Worse, her letter announcing her withdrawal from the organization raises questions about her judgment.

In June 1990, all but one of the Democrats on the Senate Judiciary Committee and one then Republican, Arlen Specter, warned future judicial nominees that membership in an organization that determines membership based on gender could be sufficient to deny confirmation. Further, it would be held against the nominee unless they "actively engaged" in efforts to get underrepresented groups into the organization. . . .

Supreme Court Decisions Bad News for Sotomayor

CFJ Executive Director Curt Levey on the implications of today’s Supreme Court decisions for the Sotomayor nomination:

Two of the Supreme Court’s decisions today – ruling that New Haven unlawfully discriminated against white firefighters and ordering reargument on whether “Hillary: the Movie” violated campaign-finance laws – are bad news for Sonia Sotomayor. Both decisions focus attention on aspects of her record and nomination, discussed below, that she and the White House would prefer we forget about. Adding to Sotomayor’s woes, on Friday, James Maloney petitioned the Supreme Court to review Judge Sotomayor’s controversial Second Amendment decision in Maloney v. Cuomo, thus highlighting that controversy as well (More on Maloney v. Cuomo).

All three cases remind us of serious concerns about Sotomayor’s nomination to the Supreme Court. While senators are back home this week for the July 4 recess, we hope their constituents will raise these concerns with them.

Ricci v. DeStefano (New Haven firefighters)

Today’s outright reversal of Judge Sotomayor’s Second Circuit decision in Ricci, which allowed the city of New Haven to throw out a promotional exam on which minority firefighters scored relatively poorly, will haunt Sotomayor’s nomination for several reasons that go beyond her being on the wrong side of the law.

1) The Supreme Court’s ruling that New Haven unlawfully discriminated against its white firefighters reminds the public both of the dark side of the affirmative action policies Judge Sotomayor supports and of the fact that Sotomayor is, by her own admission, “the perfect affirmative action baby.”

Sotomayor credits affirmative action with getting her into Princeton University and Yale Law School. And affirmative action – specifically President Obama’s focus on finding a Hispanic woman to put on the High Court – obviously played a role in her recent nomination. Nonetheless, Obama has tried to have it both ways, claiming credit for nominating the first Hispanic to the Supreme Court and “present[ing] Sotomayor’s race and gender as credentials in themselves” (Boston Globe), while simultaneously denying that she was chosen for any reason other than merit. The Globe article adds that

“In effect, Obama connected Sotomayor’s life story to the subject of her most controversial case [Ricci] … [T]he narrative connection between a candidate chosen from a list of women, touted for her race and hailed for her willingness to make gutsy decisions – who also happened to weigh in against white firefighters – created a story line that has dominated her nomination.”

Moreover, the politics motivating New Haven’s decision highlights the ugliness of the racial spoils system behind many of the nation’s affirmative action programs, and reminds us of the demands from Hispanic and women’s groups that resulted in Sotomayor’s nomination. National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor explains:

“Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a ‘political ramification’ if they certified the exam results. Kimber was a key vote-getter for [New Haven] Mayor DeStefano.”

2) The Supreme Court’s reversal of Judge Sotomayor focuses attention on ties between her Ricci decision, favoring Hispanic and black firefighters, and her racially divisive remarks.

In her speeches, Judge Sotomayor has repeatedly stated that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male.” At the same time, her speeches endorse legal theories that view impartial interpretation of the law as enabling white male domination. Did Sotomayor’s out-of-the-mainstream racial theories lead her to eschew impartial interpretation of civil rights laws in her Ricci decision?

Stuart Taylor thinks the answer may be yes. In a column earlier this month, Taylor wonders if “her decisions may be biased by the grievance-focused mind-set and the ‘wise Latina woman’ superiority complex displayed in some of her speeches.” He concludes that “close study of her most famous case only enhances my concern.”

3) The Supreme Court’s decision reminds the public that Sotomayor and two of her Second Circuit colleagues tried to bury their Ricci decision and prevent the white firefighters from attaining Supreme Court review, probably to avoid the legally and politically embarrassing reversal that occurred today. More generally, Sotomayor’s repeated pattern of burying controversial decisions seems to confirm the contempt for the rule of law evidenced in her speeches.

A New York Times article explains what Sotomayor and her colleagues did in Ricci:

“Almost everything about the case of Ricci v. DeStefano … suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion. … [Instead] [t]he appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court … The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.”

Stuart Taylor explores Sotomayor’s motivation:

“[The 2nd Circuit panel] affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.”

Taken by itself, one can only speculate about Sotomayor’s motives in giving short thrift to the white firefighters’ claims. However, it turns out that Sotomayor has a habit of burying important but controversial decisions. Sen. Jeff Sessions, the Ranking member of the Judiciary Committee, explains:

“[Sotomayor has] provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. … These truncated opinions also suggest a troubling tendency to avoid or casually dismiss difficult Constitutional issues of exceptional importance. Other examples of this [in addition to Second Amendment cases] may include the New Haven Firefighters case … and the Fifth Amendment case, Didden v. Village of Port Chester.”

4) Now that the Supreme Court has reversed Sotomayor’s Ricci decision, rather than remanding as many had predicted, her rationale for declining to discuss the case has vanished.

Given today’s decision, Sotomayor will be questioned extensively about her Ricci decision at her Judiciary Committee hearings, in written follow-up questions, and in any additional meetings with senators. Here’s a suggestion for a question:

Judge Sotomayor, you have said that the richness of your Latina experiences make you a better judge. While you served on the board of the Puerto Rican Legal Defense and Education Fund, it sued New York City, claiming that promotional exams for police officers had an adverse impact on blacks and Hispanics. Did that experience, and any empathy you may have felt for the minority officers, influence your opinion in Ricci v. DeStefano or otherwise lead to a better decision than a white judge would have made?

Citizens United v. FEC (“Hillary: the Movie”)

Sotomayor’s passionate advocacy, while serving on the federal bench, for greater regulation of campaign finances has called into question her judicial ethics and her ability to impartially decide campaign finance cases. But before today, it was anyone’s guess as to when such a case might come before her on the Supreme Court. Now it looks like this potential problem will become a reality in the very near future. The Supreme Court’s decision today to rehear Citizens United v. FEC, a challenge to the McCain-Feingold campaign finance statute, this September 9 means that Sotomayor will hear the case if she is confirmed by that date.

This problem of judicial ethics arises primarily from a Suffolk University law review article written by Sotomayor while she was a federal trial judge. In it, she rails against the lack of campaign finance regulation. As Politico describes it,

“[Sotomayor} forcefully defended the policy motivations behind such [campaign finance] restrictions, questioning the line between campaign contributions and ‘bribes,’ calling on Congress to overhaul campaign finance laws … and blasting the Federal Election Commission [the appellee in Citizens United] for not enforcing existing laws. … [Conservative election law attorney James Bopp says the article shows] that ‘she’s bought into the most extreme campaign finance reformer rhetoric. And considering that she has on occasions extolled the legitimacy of policy preferences guiding judicial decisionmaking, including her own, you’ve got to take her personal policy preferences seriously.’”

Ask yourself whether Sotomayor sounds more like a politician or a judge here. Then ask yourself if a citizen challenging campaign finance reform in the Supreme Court could have confidence that she would impartially decide the case. The answers explain why Sotomayor’s remarks run afoul of Canon 2 of the Code of Conduct for United States Judges, which states that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It appears that Sotomayor does not fully comprehend the all-important difference between her role as a political activist prior to 1992 and her role as a judge since then.

Supreme Court Overturns Sotomayor Decision

The Supreme Court voted 5-4 that the City of New Haven had wrongfully denied a group of white and Hispanic firefighters an opportunity for promotion on account of their race. Their decision overrules the Second Circuit in the case of Ricci v. DeStefano, which was decided by a panel of three judges that included current Supreme Court nominee Sonia Sotomayor.

Justice Kennedy authored the opinion for the Court, and Justices Scalia and Alito each filed concurring opinions. Both Justices Scalia and Thomas joined Alito's concurrence. Justice Ginsburg delivered the dissent, which was joined by Justices Stevens, Breyer, and Souter (who is retiring today). All of the opinions can be found here.

Given the fact that Sotomayor would be replacing Souter if she is confirmed, the vote tally would not have differed had she been in his place (and had not participated in the matter as a circiut court judge). Nonetheless, Republican Senators should note that it was her ruling that the Court has overturned, thus adding further concerns about how she would rule in cases involving allegations of discrimination and whether or not her apparent biases would play a role in such cases.

UPDATE: Ed Whalen has some excellent initial reactions to the ruling at Bench Memos.

NRA & Senators: Sotomayor Hostile to 2nd Amendment

CFJ Executive Director Curt Levey on the Second Amendment threat to confirmation of Sonia Sotomayor:

Speculation that Sonia Sotomayor’s hostility to the Second Amendment would become the biggest roadblock to her confirmation became reality yesterday, just two days before the first anniversary of the Supreme Court’s historic gun rights decision in District of Columbia v. Heller. As leading NRA board member and past President Sandy Froman urged aggressive opposition to the nomination yesterday, key members of the Senate GOP Leadership and their colleagues denounced Sotomayor’s Second Amendment record at a press conference and on the Senate floor.

Given Judge Sotomayor’s record of opposition to the Second Amendment, it’s been widely noted that if gun owners are drawn into the confirmation debate, that could completely change the political equation by causing red state Democrats to run for cover. However, while Gun Owners of America and other prominent Second Amendment advocates had already voiced grave concerns about Sotomayor’s record, the NRA’s top leadership had remained silent. That changed when Froman, a lifetime member of the NRA’s Executive Council, as well as a former law professor and Harvard Law School graduate, issued a clarion call yesterday evening in an op-ed, urging that

“Gun owners, and especially the members of the National Rifle Association, must aggressively oppose Judge Sotomayor’s confirmation to the Supreme Court … [because her] view on the Second Amendment clearly reflects an extreme anti-gun philosophy.”

Froman noted that there are 90 million gun owners in America and emphasized that the opposition she urges can defeat Sotomayor’s nomination:

“I saw NRA members turn the tide on Election Day 2000 to defeat Al Gore. We fought again to help defeat John Kerry in 2004. We can do the same with Sonia Sotomayor, if we call our U.S. Senators and tell them to vote against this anti-gun judge. No fewer than fourteen Democrat senators have solid records on the Second Amendment, and we must urge them to oppose this nominee.”

Froman goes on to explain why defeating Sotomayor is so important for gun owners:

“Today in the Supreme Court, the right to bear arms hangs by a single vote. The next question the Supreme Court will decide is whether the Second Amendment is a ‘fundamental right’ that applies to cities and states … Even the liberal Ninth Circuit Court of Appeals held [that it] is a fundamental right, yet Judge Sotomayor disagrees. … If your state or city chooses to ban all guns or take away the ones that you already have in your home for hunting and self-defense, Sonia Sotomayor says the Constitution can’t help you. … Throughout her career, Judge Sotomayor’s record is one of consistent opposition to the private ownership of firearms.”

It is not just gun owners and the Ninth Circuit who believe Sotomayor is on the wrong side of the law. A recent CNN poll found that more than three-quarters of Americans disagree with Sotomayor’s cramped interpretation of the Second Amendment (link below).

Senators Thune, Sessions, Cornyn, DeMint, Hatch and Brownback all voiced similar sentiments to Froman’s. At yesterday’s press conference, Sen. Cornyn emphasized the historic importance of the debate about Sotomayor Second Amendment record:

“This is the first time that I know of in our nation’s history that a Supreme Court nomination will … revolve around the nominee’s commitment to the Bill of Rights, and most particularly the Second Amendment to the Constitution.”

Sen. Hatch focused on the judicial activism Sotomayor displayed in deciding Second Amendment cases:

“Even after the Supreme Court in Heller indicated the Second Amendment protects not only an individual right to keep and bear arms but a pre-existing fundamental right, Judge Sotomayor continued to say that the right to keep and bear arms is not a individual fundamental right and did so when it was not necessary to decide the case before her. This appears to be an approach focused on politically correct results rather than a judicially correct process. Other circuits looking at the issue … gave it much more attention and analysis than did Judge Sotomayor and they did not address the unnecessary issues. … I wish Judge Sotomayor had been similarly restrained on these issues. … [T]his is a fair way of letting her know in advance that this is an important issue to I think a majority of senators in the US Senate and certainly a majority of the people in this country.”

Sen. Sessions, the Ranking member of the Judiciary Committee, focused in part on Sotomayor’s pattern of burying her questionable decisions on the Second Amendment and other high-profile issues by brushing over the key questions:

“[Sotomayor has] provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. … Judge Sotomayor’s lack of attention and lack of analysis are troubling. These truncated opinions also suggest a troubling tendency to avoid or casually dismiss difficult Constitutional issues of exceptional importance. Other examples of this [in addition to Second Amendment cases] may include the New Haven Firefighters case, Ricci v. DeStefano, which is currently pending before the Supreme Court, and the Fifth Amendment case, Didden v. Village of Port Chester.”

Sotomayor: My women-only club isn’t discriminatory but I’m quitting it anyway

As Allahpundit says, "Who among us hasn’t distanced themselves from something they personally have no problem with?"

A Tale of Two Clubs

As a followup to Emily's post below, Jeffrey Lord recalls Senate Judiciary Chairman Patrick Leahy's 2002 reaction to Bush Third Circuit Court nominee D. Brooks Smith's former membership in an all-male fishing club in Pennsylvania. 

"He could fish -- but wasn't one to frequent Spruce Creek and stand around mid-stream rod in hand. His membership was sentimental. Asked at his 1988 confirmation hearing if he would work to end the all-male gender membership barrier, Smith promised he would do so. He did just that, trying and failing several times to get the club to admit women as members (they were already allowed as wives or guests.) In 1999, between his infrequent visits with his wife and consistent rebuffs from the club leaders about allowing women in as members, Smith finally quit.

By 2002, as Leahy, Schumer, and others were busy colluding behind the scenes with left-wing special interest groups to savage Bush judicial nominees, Smith's now ex-membership became a target. Submitting his written questions to Smith, Schumer's 6th question concerned Spruce Creek. It had no sooner arrived on Smith's desk than, mysteriously, a corresponding attack from the National Organization for Women appeared in the Pittsburgh Post-Gazette. While it never mentioned Schumer's question to Smith, the attack tracked with the points raised in Schumer's question. When this was noted by a Smith supporter in a response, NOW denied any collusion, then proceeded to comment on the substance of Schumer's question -- which it had previously claimed not to have seen and which was still sitting atop the "privacy" of Smith's desk.

The attack was beaten back to considerable degree because of an interesting fact neither Leahy nor Schumer knew. On the wall of the club was a photograph of Marine One landing at Spruce Creek. That would be the official helicopter of the President of the United States. The president in question was a Spruce Creek devotee -- Jimmy Carter. Not only was the Democratic president responsible for appointing every federal judge in the country between 1977 and January of 1981 a frequent visitor to what Leahy and Schumer were painting as a sewer of gender discrimination, he was still coming there long after his White House days were over."

Jimmy Carter's presence at the club mattered little as Democrat after Democrat took to disparaging the club and Smith's membership therein.  Ted Kennedy even echoed the charge that it violated Canon 2c addressed below when he stated that, "if the Spruce Creek Club can be used for business purposes, its exclusion of women would violate the Judicial Code of Conduct."  The fishing club was not used for business purposes.  On the contrary, according to a club official, "the whole point of the Club is to get away from business."  The Belizean Grove as described by its website is "a constellation of influential women who are key decision makers in the profit, nonprofit and social sectors; who build long-term, mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same."  So, in short it is a club precisely for business purposes.

Where are Senator Leahy and his Democratic colleagues now? 

Bueller... Bueller... Bueller...

For what it is worth I don't care that Judge Sotomayor belonged to an all women's club.  Maybe it violates Canon 2c and maybe it doesn't.  But that is not the greater point.  As was seen with Sotomayor's widely repeated "wise latina" remarks, the Democrats are rank hypocrites whose desire to play on identity and grievance politics often trumps rationality.  It also shows the party's propensity to overreact and blow things out of proportion.  Judge Smith's membership in a fishing club was enough for some to vote No on his nomination, but when the tables are turned, nothing but silence.

Sotomayor and the Belizean Grove

Nominee Sonia Sotomayor has come under fire for her membership in an elite women-only group. Some Republican senators claim that she violated Cannon 2C of the American Bar Association’s judicial codes, which states that it is inappropriate for judges to belong to groups that “invidiously” discriminate on the basis of race, sex, religion or national origin. In a letter responding to concerns raised by Republicans on the Senate Judiciary Committee, the nominee claims the Belizean Grove does not invidiously discriminate on the basis of sex because men are permitted to participate in events, and can probably even join if they wish to.

“Men are involved in its activities — they participate in trips, host events, and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership. It is also my understanding that all interested individuals are duly considered by the membership committee.”

This is the most flimsy defense she could possibly have concocted. The Belizean Grove advertises itself as an all-female group. Of course no man has ever asked to be considered. Jennifer Rubin notes that this is the same argument exclusive men’s groups used to exlude women:

“A few things are noteworthy. First, the condescension toward men — we let the guys come to party — is reminiscent of the “we let women be social members” excuses that exclusive men’s clubs routinely gave for decades – and which were scorned by women’s groups. Second-class citizenship for thee, but not for me. Got it?
[T]he line about “no one ever asking to join” is rich. Certainly if one declares the organization to be “all men” or “all white” or “all anything” those not in the “all” group are going to be dissuaded from seeking membership. Isn’t the mere statement of exclusivity enough to raise concerns?”

Susan Strautberg, founder of the Belizean Grove, supported Sotomayor’s statements when she spoke to Politico

“Stautberg stressed that male “spouses, partners and adult children” are permitted to go on the optional post-retreat expeditions (last year’s was to Machu Picchu and the Sacred Valley) and said that even though “no man has ever applied to be a member. ... If they did, we would certainly vote on it.”

They might vote on it, but no individual with a Y chromosome is getting into the Belizean Grove. And that’s perfectly fine. Why? The group was established as a networking group for women, and women only. I have scoured the Belizean Grove’s website, and there is not one shred of evidence that suggests men are welcome in the group. Indeed, the website confirms that the group was established as a group for women in response to the existence of the similar all-male Bohemian Grove.

Who does Sotomayor think she’s fooling? She is relying on old-fashioned arguments employed by discriminatory all-male groups to justify their exclusion of women. The Belizean Grove is expressly women only, and not because no men ever applied. Sotomayor should have been honest, and defended her membership in what is a seemingly harmless women’s professional group. Instead, she is insulting our collective intelligence by claiming that the group might admit men if they ever applied. The fact that this was the best defense she could patch together truly makes me doubt the strength of her intellect.

Did Sotomayor Overrule....Herself?

It certainly looks that way in a Second Circuit panel's ruling on In re Initial Public Offering Securities Litigation, which reverses its decision in the case of In re Visa Check/Mastermoney Antitrust Litigation. Oddly enough, Sotomayor participated on the panel that disavowed the earlier opinion that she herself wrote.

Robert J. Ambrogi has the details at Law.com's Legal Blog Watch.

The Court and Public Opinion

The National Journal's Stewart Taylor has an interesting article entitled "Court More Liberal Than Public Opinion."  It is worth remembering when the White House or the media label Obama's nominees moderate.

"We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.

But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices' rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.

The four more liberal justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.

If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices' constitutional interpretations. (emphasis added)"

Be sure to read the whole thing.

Standardized Tests, Cultural Bias, and Ricci: How Experience Influenced Sotomayor's Decision

Supreme Court nominee Sonia Sotomayor believes that judge’s personal experience should influence his or her rulings. Her oft-quoted remarks published in Berkley’s La Raza Law Journal in 2001 leave little room for doubt on this account:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

“Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.”

And the most controversial of all:

“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.”

Democrats were quick to rise to the judge’s defense once the quotes reached the public ear. Perhaps she only meant that her experiences as a Latina would add to the diverse perspectives on the Court, suggested Senator Arlen Specter. Or maybe she didn’t mean it literally, argued Senator Dianne Feinstein. The quote was surely taken out of context, added Senator Chuck Schumer.

Of course, the fact that she echoed the same sentiments numerous times in public appearances throughout her career has cast considerable doubt on these excuses. Yet prior to the recent video release, only speculative inferences could be drawn about how she applied those “rich experiences” to her practice as a judge.

Now, however, there is further evidence to suggest that Sotomayor’s personal biases contributed directly to her ruling in the case of Ricci v. DeStefano.

The case, as most will recall, involves an exam that was administered to New Haven, Connecticut firefighters in order to select candidates for promotion, but was discarded when no black firefighters managed to score high enough to qualify for consideration. Seventeen of the firefighters who qualified for promotion, led by Frank Ricci, sued the city on grounds of discrimination, but the three-judge panel that included Sonia Sotomayor ruled against them.

Given that President Obama has praised her for having that crucial empathy factor necessary for an effective Supreme Court justice, combined with Sotomayor’s own emphasis on her Latin heritage, one could reasonably (though not conclusively) surmise that her empathy for minorities played a role in her decision on the Ricci case.

But recently revealed statements by the judge suggest a more concrete basis for her lack of impartiality:

“With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates. And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action to try to balance out those effects.”

Here we have Sotomayor admitting that she not only benefited directly from affirmative action, but that she believes standardized tests are implicitly biased. Thus, the fact that not a single black firefighter scored high enough on the New Haven test (although one Hispanic managed to pass) in all likelihood convinced her that this test was biased as well. Frank Ricci and his fellow petitioners never stood a chance.

And she came to this conclusion despite the city’s intentional efforts to ensure the test was free of potential sources of bias by hiring a consultant to design the exam with this specific goal in mind.

Defenders of Sotomayor might object to this interpretation by contending that we cannot possibly know what she was thinking when she ruled against Ricci. If we were discussing a judge who was dedicated to putting the rule of law ahead of personal bias, they would have a legitimate point. But Sotomayor's experience with "culturally biased" testing, coupled with her history of remarks upholding a judge's use of personal experience to guide his or her reasoning on the bench, makes it difficult to conclude she was not unduly influenced by her personal views on the matter.

UPDATE: An interesting article from the LA Times on a Puerto Rican Legal Defense and Education Fund (PRLDEF) suit filed in a case similar to Ricci when Sotomayor sat on the organization's board in 1984.

The Sotomayor Tapes

The New York Times has posted nine videos that were given to the Senate Judiciary Committee last week. The videos feature Sonia Sotomayor commenting on a variety of issues during speeches, interviews, and panels.