Sotomayor Grilled, Sotomayor Flip-Flops, Sotomayor Uncut….Why She Is Unqualified To Be On The SCOTUS Bench

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Greetings from Vancouver Island, British Columbia, Canada where I am visiting my folks. I’ve been following the Sotomayor confirmation hearing via the blogs when I can, haven’t seen any of it on TV, but what I’ve read on the blogs is pretty much what I expected. She is pulling an Obama flip-flop on her earlier views to get into power. Here is a liberal law professor’s views:

I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts?

~~~

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

Actually I don’t think there is an either/or here. She is both intellectually and morally unqualified. Here’s Ed Whelan on another flip-flop:

Judge Sotomayor’s exchange with Senator Schumer on foreign and international law (available towards the end of this transcript) is either incomprehensible or disingenuous.

As I have documented, Sotomayor has defended freewheeling resort to foreign and international law while positing an unintelligible distinction between “use” of foreign or international law and “consider[ing] the ideas that are suggested”by international and foreign law. Among other things, she said that Justices Scalia and Thomas, in “extensively criticizing the use of foreign and international law in Supreme Court decisions,” misunderstand that imaginary distinction. She stated that she “share[s] more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases and by international cases that we are going to lose influence in the world.” And she spoke approvingly of recent instances—Roper v. Simmons and Lawrence v. Texas, specifically—in which the Court “looked … to foreign law to help us decide our issues.”

But today Sotomayor seemed to say virtually the opposite.

That was yesterday, and today?

Below (in full) is the exchange this morning between Senator Coburn and Judge Sotomayor on use of foreign law. Is there anyone who thinks that Sotomayor’s comments (especially the ones I italicize) are coherent or consistent with her April speech?

COBURN: You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.

SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law. I…

COBURN: But I accepted that. I said outside of those…

SOTOMAYOR: Well…

COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?

SOTOMAYOR: My speech and my record on this issue is I’ve never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.

COBURN: So you stand by the — there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?

SOTOMAYOR: Unless the statute requires or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.

COBURN: Well, let me give you one of your quotes. To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their mind to good ideas. Nothing in the American legal system prevents us from considering those ideas.

We don’t want judges to have closed minds just as much as we don’t want judges to consider legislation and foreign law that’s developed through bodies, elected bodies outside of this country, to influence what, either rightly so or wrongly so, against what the elected representatives and Constitution of this country says.

So would you kindly explain the difference that I perceive in both the statement versus the way you just answered?

SOTOMAYOR: There is none. If you look at my speech, you’ll see that repeatedly I pointed out both that the American legal system that structured not to use foreign law. It repeatedly underscored that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or the statutes.

What I pointed out to in that speech is that there’s a public misunderstanding of the word “use.” And what I was talking about, one doesn’t use those things in the sense of coming to a legal conclusion in a case. What judges do — and I cited Justice Ginsberg — is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider.

But that’s just thinking. It’s an academic discussion when you’re talking about — thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a — if — if there’s a citation to foreign law, that’s driving the conclusion.

In my experience, when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.

Intellectual?

Judge Sotomayor says “eminent” when she means “imminent,” “providence” instead of “province,” “story of knowledge” instead of “store of knowledge,” and so on. Does the fact that she is a Latina immunize her from attention to that sort of (admittedly not uncommon) foible?

So she flees from her earlier views…but why?  There is no way we can stop her from being put on the bench.  We just don’t have the votes.  So why pull the Obama flip-flop?

Matthew Franck:

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president’s and Judge Sotomayor’s (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that’s right.

Sure, it’s unacceptable, but the men and women who were entrusted to vote for the American people will soon stamp approved on her application for SCOTUS. It’s obvious now, if it wasn’t before, Sotomayor is not qualified to be on our most powerful court. Will the Democrats do as Republicans did with Miers?

Not on your life.

That would just prove that their savior was just as unqualified because he chose someone not for their intellectual prowess but purely political reasons.

Ed Morrissey:

In short, every prevarication and stumble Sotomayor makes deepens the impression that Obama is not a competent executive. That’s the real danger for Obama in these hearings, and the tough questioning of Jeff Sessions and Lindsey Graham has made it a reality.

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Judge Sotomayor says “eminent” when she means “imminent,” “providence” instead of “province,”

…and “numbchucks” when she means “nunchucks”
http://www.powerlineblog.com/archives/2009/07/024050.php
(maybe she thinks that they are to induce numbness when one is struck by them?)

Oh, and did we mention she’s not honest?
http://www.powerlineblog.com/archives/2009/07/024048.php
(that, or not terribly bright)

Intellectually and morally unqualified.

But that is what the Liberals want, just a stooge and her ideological vote.

Has she crossed the line into lying to Congress territory yet?

Mediocrity is the new standard. Her bias is obvious and she is unfit for the bench on any level.
She is crafty and an affirmative action product, not a wise Latina. A wise one would not have gone on record for some of the irresponsible statements that are attributed to her.

Sen. Graham presented her with an opportunity to clarify and she blew it. SCOTUS Judges are appointed for Life. I’m sure there are less biased and better qualified Judges out there that would serve the Judicial System and the Nation far better. She is an activist with a large chip on her shoulder. Period.

Day three on confirmation hearings and her views on Abortion and the Second Amendment are as yet unclear. Obfuscation appears to be her long suit. She’s a Wild Card so far. Without clearly expressed views on those two issues she should not be a viable candidate.

Curt: I hope you get a chance to visit Butchart Gardens unless you have already. And I really liked Victoria. I could have stayed there for months.

Unfortunately the Republicans are in no position to stop her, they can only throw a hissy fit from which they will lose the Hispanic vote for many years.

@ John ryan Republicans, Democrats and Independents should not be concerned about winning future elections, they should vote what is best for the country. Pointing out flaws and strengths in the candidate is what this process is supposed to be about.

I didn’t notice the hispanics having any reaction whatsoever when Miguel Estrada was nominated. The demoncrats sure trashed him so badly he dropped out of the running. Of course, we understand in demoncrat eyes it was all right to trash a republican hispanic. The truth of the matter is that greater America is not noticing or caring about these proceedings.

Deskovic says he was falsely charged and convicted of rape and murder at the age of sixteen and was sentenced to life in prison. A number of years later, after DNA tests showed that semen found in the victim did not match his own, he appealed his conviction to Judge Sotomayor and the Second Circuit Court of Appeals. Despite the strong evidence that seemed to exonerate him, Sotomayor let the conviction stand. According to Deskovic, this was mainly the result of two factors: pressure from a District Attorney with political aspirations, and the fact that Deskovic filed his appeal four days late.

Her judgment allowed an innocent man to rot in prison for six years… Oops? She had six years to get it right…

While this little post isn’t directly related to the Sotomayor nomination, it is pertinent to the idea of rejecting The One and his policies. If anybody doesn’t find this too wacky, pass it on.

For your very freedom and the dreams you hold dear in your heart.

Dear people, wherever you may be,

I’ve just finished rereading Atlas Shrugged for the third time. The first two times (a long time ago) I applied its lessons to the collapse of the Soviet Bloc. Now Ayn Rand’s work seems more pertinent than ever due the events unfolding in my homeland.

The reason I say my homeland is because I’m an expatriate American English teacher living in South Korea. I’ve been living and working in the ROK for twelve years, but I still send in my absentee ballot for presidential elections every four years.

What I’ve been seeing taking place in the USA since January 20 is making me more upset by the day. The mounting deficits, the growing and dangerous dependence on China (many South Koreans are very jittery about China) to finance those deficits, the talk of instituting new (VAT and a big one at that) taxes to help cover those very same deficits, the bailouts of GM, and particularly Chrysler, the attempt to remove choice and private enterprise from the U.S. health care system, the stimulus that went mostly to government drones rather things that would really stimulate, and above all, the despicable behavior of the mainstream media in covering up Obama’s real Chicago background. I had to go and find the red star at the top of William Ayers website all by myself!

All these things have made me very alarmed concerning the future of my country. So I’ve reached one overriding conclusion: it’s time for Americans to revolt against royal authority for the second time in 234 years.

I say this because I don’t believe the traditional legislative process can stop my country’s slide towards the comfortable euthanasia of West European-style socialism. With the idiocy of Bush to guide them, the Republicans have done a very creditable job of taking Dirty Harry’s 357. and pointing it at least at their feet, if not their heads.

So it’s time to revolt. This will be a difficult idea for many Americans to grasp. After all, we are the product of a culture that has based on the rule of law from its very beginnings back in medieval England.

What I’m talking about is starving the Government Beast. Come next April 15, 2010 don’t send in your tax forms. Refuse to pay! If you’re a small businessman don’t pay your state (If you live in California, New York, or New Jersey, this applies especially to you) or federal business taxes. Don’t pay your licensing fees! When the Bush tax cuts expire in 2011, don’t file! Simply don’t feed the Beast!

If you’re worried about prosecution, there’s safety in numbers. If ten million Americans refuse to pay, the looters can’t possibly oppress more than a very small number of people. If ten million small business people refuse to knuckle under to the New Jealously Class, then the Beast will be truly crippled and will be forced to beg for mercy. View your refusal to pay blackmail to the looters as a civil rights issue along the lines of what inspired Martin Luther King during the civil rights movement of the 1950s and the early 1960s. IT IS NOT YOUR PATRIOTIC DUTY TO PAY HIGHER TAXES! In fact, it can be considered a form of treason to file on April 15, 2010.

Anyway, this has happened before. What most Americans don’t remember or never learned is that in the run-up to the American Revolution the British backed down twice over the issue of taxes. Parliament repealed both the Stamp Act and the Townshend Acts in the face of fierce colonial protests. Remember, the looters don’t have the mighty Royal Navy behind them, or ranks of hard fighting British Grenadiers, all they have in their favor is the willingness to submit of a people who have been comfortable for far too long.

Michael G. Gallagher, Ph.D.
Seoul, Korea
sauruman56@yahoo.com

Michael G. Gallagher, Thanks!

You have a more keen knowledge of American History than any US Congress Members or Senators.

The Obama Socialist Beast is like a rat gnawing away on the US Constitution and the Economy.

‘course, the only problem with Michael Gallagher’s suggestion is that the IRS would attach all assets and real estate in lieu of tax payments, and be even larger real estate moguls than they are. No thank you… they already own enough businesses. I refuse to give them my house for the steal of a price to the tune of my annual taxes.

John ryan, and you DOLTS will suffer under her appointment for decades and regret it for the rest of your lives.

Fools like You made this possible!

So Sotomayor believes “unless American courts are more open to discussing the ideas raised by foreign cases and by international cases that we are going to lose influence in the world.” One case comes immediately to mind — Elian Gonzales. Just what world did the US influence with that decision? I would argue that the only “world” affected by that case was the world of Elian Gonzales and his chance to grow up in freedom versus his sentence to grow up as a puppet Castro displays every so often to remind himself of his victory over US courts and freedom loving people everywhere. The US certainly did not gain any influence with Cuba as a result of that decision.

American courts are the place for American law. Judges, especially those who aspire to the highest court in the US, should be open to discussing and ruling on American law. They should not be concerned with how America might lose “influence in the world.” We have diplomats for that.

Beliefs like Sotomayor’s have resulted in Sharia law being accepted and applied to immigrant populations in places like Great Britain. If this nonsense isn’t stopped those yearning to be free of the tyrannies found in their own homelands won’t have a place to escape them.

As is the case of anyone picked by the obambozo, NOT QUALIFIED! They either cheat on their taxes, hire illegals to keep house and take care of the kids or are outright communists.

@ Michael G. Gallagher

Easy for you to say from South Korea. I concur with Mata. It is foolish to resist by giving a government a legal excuse to remove you from society. Even if you could get a large number of people to support you, they will wait and take each one in custody until the others capitulate.

Anyone who ever attempted to advance themselves by getting educated should oppose Judge Sotomayor. The whole point of getting educated and taking exams is to ensure that the best and brightest amongs us is promoted to positions where the less well educated and those who fail exams are overseen by people who have proven they have a good all round professional understanding of the position they are applying for…..
I was hoping someone would ask Judge Sotomayor:
“What question(s) in the firefighters exam did you consider racist, beneath the capability of minorities to answer … and why should test and exam results be lowered to accomodate the failures instead of helping them get better educated to bring them up to the same standard as those who actually passed the exam”
.

Probably too late,

To the people who disagreed with me, as is their right.

If you think it’s hopeless to fight back, why do you even bother to post at a site like this? It’s like a school of fish, there is safety in numbers. If the IRS attaches the property and accounts of too many people, there will be a backlash, especially if people are refusing to pay other forms of taxation as well.

Finally, there are schools of fish and then there are schools of fish. For instance, there is a difference between a school of sardines and a school of barracuda, or the great schools of hammerhead sharks that gather in Mexico’s Sea of Cortez to breed.

Michael G. Gallagher

What I think is strange is Republicans were against Harriet Miers for being unqualified, but three years later got weak in the knees over Sarah Palin.