First, there are the originalists and textualists that believe the text of the Constitution, as it was originally understood, is controlling in most constitutional cases.

Second, there are the followers of Supreme Court precedent, who follow the doctrine over the document and believe in a fairly robust theory of stare decisis in constitutional.

Stare decisis is the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions.

There was a marked a shift away from teaching the former at law schools during the early twentieth century in favor of a focus on the later. Now this may seem to be an innocuous shift but it has far reaching consequences due to its emphasis on precedent. With the makeup of the judiciary consisting of a preponderance of judges that were taught the stare decisis philosophy, the Constitution transforms from a bedrock document to one more akin to the shifting sands of a wind blown dune.

The SCOTUS recently decided that Corporations have all the rights of a person. Let us examine the use of stare decisis in this particular case as an example of how the flavor of our country can be affected by such philosophy.

The Supreme Court in Santa Clara County vs Southern Pacific Railroad issued an obiter dictum statement that corporations are entitled to protection under the Fourteenth Amendment. An obiter dictum is Latin for a statement “said by the way.” A passing remark from Chief Justice Morrison R. Waite, recorded by the court reporter before oral argument, now forms the basis for the doctrine that juristic persons (corporations) are entitled to protection under the Fourteenth Amendment. Whether or not Chief Justice Waite’s remark constitutes binding precedent is arguable, but subsequent rulings treat it as such.

The decisions reached by the Supreme Court are promulgated to the legal community by way of books called United States Reports. Preceding every case entry is a headnote, a short summary in which a court reporter summarizes the opinion as well as outlining the main facts and arguments. For example, in U.S. v. Detroit Timber and Lumber (1905), headnotes are defined as “not the work of the Court, but are simply the work of the Reporter, giving his understanding of the decision, prepared for the convenience of the profession.”

Before publication in United States Reports, Davis, the court reporter, wrote a letter to Chief Justice Morrison Waite, dated May 26, 1886, to make sure his headnote was correct:

Dear Chief Justice, I have a memorandum in the California Cases Santa Clara County v. Southern Pacific &c As follows. In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does.

Waite replied:

I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.

We see that Chief Justice Waite acknowledge in the case of Santa Clara County vs Southern Pacific Railroad that they specifically “avoided the constitutional question”.

Corporations, because of the recent Supreme Court decision granting unfettered free speech rights, wield an enormous amount of influence over our political system based on a precedent that wasn’t even a part of the Santa Clara County decision but simply a court reporter’s “head note” concerning the case.

The question of the constitutionality of a corporation being a “person”, has never been addressed yet we have subsequent Supreme Court decisions being made based on this so called “precedent”.

Now what’s all this got to do with the price of tea in china? During FDR’s reign, his policies were time and time again declared unconstitutional. FDR frustrated that he could not enact policies that were clearly unconstitutional began an assualt on the Supreme Court.

Roosevelt stunned Congress in early 1937 by proposing a law allowing him to appoint five new justices, a “persistent infusion of new blood.” This “court packing” plan, FDR’s attempt at circumventing the Constitution ran into intense political opposition from his own party, led by Vice President Garner, since it seemed to upset the separation of powers and give the President control over the Court. Roosevelt’s proposals were defeated.

The Court, in an act of appeasement, wishing to end the confrontation with the administration found the Social Security Acts to be constitutional. It appears to me this decision was a result of an almost extortion like use of power by Roosevelt. Roosevelt’s unprecedented four terms in the Office of President, coupled with control of Congress squarely in the hands of the Democratic party allowed Roosevelt to ultimately pack the court with sympathetic justices when deaths and retirements on the Supreme Court allowed. Between 1937 and 1941, he appointed eight justices to the court.

Because subsequent Supreme Courts relying more on precedent than a true examination of the Constitution and our founder’s intent have usurped power from the States and the people, granting the Federal Government dominion in areas where it has no constitutional authority, all based on precedent.

Some wish to regale FDR as one of the “greatest” Presidents. He did govern during difficult times, however, I cannot categorize him as such. A great President takes an oath to uphold and defend the Constitution and does so whenever it is under attack. Roosevelt on the other hand, assaulted the Constitution at every turn and ultimately used appointments to the Supreme Court that were sympathetic to his policies to further that assault.

It is striking that there is not a word in the Constitution that says in any way that precedent trumps the text. Article V specifically sets forth a procedure by which the constitutional text can be changed through the amendment process. Amendment is the only process the constitutional text provides for making changes in the document. Five-to-four or even nine-to-zero Supreme Court decisions do not trump the text. Moreover, in the Supremacy Clause, the document says that the Constitution, laws, and treaties shall be the “supreme Law of the Land,” but makes no mention of Supreme Court decisions.

Today, we consistently see 4-5 decisions by our Supreme Court justices which can only be attributed to ideological differences and NOT the strict application of the Constitution.

Despite the FA resident warmists, insisting this is much ado about nothing, even one of the most vocal alarmists and stiflers of debate by “climate criminals” – UK’s George Monbiot – admits that the CRU absconded database becoming public is a “major blow” to advancing climate change legislation. Even going so far as to say the documents “… “could scarcely be more damaging.”

Conversely, the big Zero’s “climate czar”, Carole Browner, is busy publicly plugging her ears to the scandal, hoping it will simply go away.

As is becoming more common for news reporting today, the internet is leading the charge, defining the talking head production segments of news. When the blogosphere is alive and active on an issue, invariably the talking heads are forced to follow. And between the CRU’s database becoming public knowledge… meticulously combed thru by all types of interesting parties (including our own Patvann and family)…. combined with New Zealand’s NIWA also being accused of unexplanable fudging of raw temperature measurements… this is an issue that is not only *not* going away, but is destined to destroy any thread of hope that the December Copenhagen climate convention would culminate in anything but another toothless resolution of promises and intents. Their next best hope would be Mexico City in 2010… highly unlikely at the undeniable cost to American taxpayers in a mid term election year. And, as I pointed out late October, much of the success of Copenhagen depended upon Obama and the US Congress, implementing American emissions legislation.

The emergence of manipulated data from both CRU and NIWA into public domain has all but dashed the hopes of Congressional Dems and Obama for cap and trade legislation. The thin margin of victory for cap and trade in the House this year may have left the realms of bragging rights, and entered into a campaign issue that may have to be explained away.

But wait… there’s more.

There’s still the EPA, which is preparing an “endangerment finding” that would allow it to regulate carbon on the grounds it is a danger to public health. It is here the emails might have the most direct effect. The agency has said repeatedly that it based its finding on the U.N. science—which is now at issue. The scandal puts new pressure on the EPA to accede to growing demands to make public the scientific basis of its actions.

Mr. Inhofe goes so far as to suggest that the agency might not now issue the finding. “The president knows how punitive this will be; he’s never wanted to do it through [the EPA] because that’s all on him.” The EPA was already out on a legal limb with its finding, and Mr. Inhofe argues that if it does go ahead, the CRU disclosure guarantees court limbo. “The way the far left used to stop us is to file lawsuits and stall and stall. We’ll do the same thing.”

In case this is drawing a blank in your mind, this new found “power” of the EPA to regulate carbon emissions stems from the AGW alarmists celebrations of the SCOTUS decision on Massachusetts v. Environmental Protection Agency back in April 2007. In that ruling, SCOTUS held “…that greenhouse gases are “air pollutants” that the Administrator of the
Environmental Protection Agency (EPA) is authorized to regulate under Section 202 of the Clean Air Act.” Within a year, multiple states and environment groups were filing additional lawsuits, demanding EPA regulation on emissions from vehicles… essentially placing them in the lofty position of becoming “climate scientists” capable of bypassing Congress via back room regulations.

Considering the SCOTUS opinion was founded on IPCC documentation… now called into question with the exposure of questionable and unstable correction and adjustment formulas… the EPA and enviros may now found themselves dead in the water with legal recourse.

’scuse me for a sec…. HOOOOOOOYAH! :0)

If you haven’t had enough “good news” here, how about some more? Can you say Congressional hearings? With Inohofe and the GOP leading the charge, the entire scandal becomes quite pertinent because taxpayers fund climate studies, and includes many federal agencies.

Add to that the CRU scandal, which pivots the focus to potential fraud. Republicans are launching investigations, and the pressure is building on Democrats to hold hearings, since climate scientists were funded with U.S. taxpayer dollars. Mr. Inhofe’s office this week sent letters to federal agencies and outside scientists warning them not to delete their own CRU-related emails and documents, which may also be subject to Freedom of Information requests.

I know it’s been oft mentioned by some on this blog that the MSM is remaining silent. Actually, they aren’t…. it’s not dominating the news 24/7, but it’s certainly getting some covereage here and there. But we sure know one more thing…. it’s only going to become more prominent in news coverage with the scope of this scandal spreading it’s tenacles to all involved.

The case in front of the Supreme Court, Citizens v. Federal Election Commission, revolves around a documentary called “Hillary: The Movie,” produced by Citizens United. Based on Hillary Clinton, the film was banned for violating the McCain-Feingold bill which requires disclosure on funding sources, and stipulates that neither corporate or union treasuries can finance any “ad” pro or con just before a primary.

The 2002 Bipartisan Campaign Reform Act (BCRA), also known as the McCain-Feingold bill, was the last major piece of legislation passed to control the source of financing for Federal political campaigns. The bill eliminated soft money donations to the national party committees, and restricted the funding of political pronouncements, ads, etc., by corporations, or organizations such as unions and non-profit organizations.

The arguments and presentations beginning today in front of the Supreme Court, will address a question all voters should take a stand on. Are your rights to free speech the same as the rights of corporations or organizations? Corporations and organizations are not individuals, they do not have the inherent rights of the people, nor do they have the same privileges. They are vehicles created and used by society for diverse purposes. Voters should seek to minimize their further influence on the political process and on the political landscape.

You will hear and read arguments whining that the government is treating organizations big and small, unfairly by prohibiting election advocacy, and is in effect imposing censorship. Some suggest that such treatment of organizations provides them less protection in the eyes of the law than is provided to individuals. The suggestion that organizations should be equal to individuals under the law twists the interpretation of the Constitution beyond common sense, and ignores the fact that current laws provide organizations with rights and privileges not available to individuals. Let’s not let anyone convince us that organizations are “persons.”

You will also hear that the media companies have no restrictions on their election leanings, or that restrictions do not apply to them and should therefore equally not apply to other corporate entities. While it is true that media companies have been given a pass on their ability to “manipulate” opinion, this is not a persuasive argument for overturning laws that in themselves do not go far enough in the restrictions of campaign finance.

The First Amendment of the Constitution explicitly prohibits Congress from infringing on the individual’s freedom of speech (other than inciting government overthrow), and as we long ago learned, free speech is a great freedom, but is not so “free.” While you may be able to shout your ideas, demands or wishes freely out your window to the extremes your lungs will allow without bursting, you will not achieve the reach that well financed organizations are able to affect as they shout at you through your invasive televisions.

This court decision revolves around financing free speech, but at its heart is the impact the decision will have on ability of organizations to influence voter perception. Organizations large and small already have too much influence on the electoral process. Corporations and labor organizations already impact election outcomes through such vehicles as Political Action Committees (PACs), or through the doors of political party organizations. We should note that the billion dollar campaign which carried Barack Obama into the Oval Office could not be audited by the Federal Election Commission (FEC) because the task was too onerous. Do not believe the pretense that the FEC is a watchdog, or does its job of monitoring campaign contributions, much less where and how the money is spent.

Allowing entities to finance the formation of perceptions, places a vast amount of power in the few hands at the helms of those entities, far overreaching the capacities of their “rank and file.” Politics have always been and will always be subject to self-serving influences. As wealth concentration continues unabated, effective control of the political process has already been skewed away from the average taxpayer. Simply put, the CEO of Goldman Sachs reaching into the company coffers has access to more money than you do to impact the outcome of an electoral campaign, and it’s not even his money. Neither shareholders, nor his employees, have any say on the candidate receiving the CEO’s largesse.

Some alternative legislation should be considered, including anonymity of donations, capping personal contributions and matching them with government funds, as well as eliminating all corporate and union political contributions and related loopholes. Beyond cleaning up the abuse of the process, this would bring campaign funding and spending within realms that might foster the advance of alternative parties to the political game on the national stage.

Should the Supreme Court overturn years of tested law in favor of corporate and union spending, it will relegate the taxpaying voter to that of second-class citizen, and insinuate a gigantic crack into the democratic process. No matter what the Supreme Court decides, the voter should take a stand at the poles with facts rather than with the prejudice of well-financed and influential rhetoric and advertisements.

High definition cameras bringing the drama into public consciousness should invade this upcoming Supreme Court hearing, and educate voters on the fundamental process none can take for granted. A Democracy is a very fragile environment demanding fastidious nurturing. “We the people,” was never intended to mean, “We the corporations and unions.”

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.

With Sotomayor there is no reason for any Republican to vote yes on someone who doesn’t value the Constitution and on someone who is obviously a activist judge. But apparently they’re hoping to get 23 no votes out of 40 Senators.

Pathetic.

Sessions came out swinging today thankfully:

Republicans came out firing at this morning’s confirmation hearings for Sonia Sotomayor, as Sen. Jeff Sessions (R-Ala.), the ranking member of the Judiciary Committee, accused Sotomayor of being prejudiced.

Citing a controversial racial bias case in which a fire department discarded the results of a qualifying test when black firefighters scored too low, Sessions said Sotomayor was biased in favor of the minority employees.

“It seems to me that in [Ricci v. DeStefano], Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against the others,” Sessions said.

But Sessions’s attack wasn’t confined to the Ricci v. DeStefano case. The Alabama Republican indicted Sotomayor’s entire philosophy as based on non-judicial factors.

“Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom,” Sessions said.

Sessions statement is a clear sign that Republicans intend to hammer away at the Ricci case when they have a chance to question Sotomayor tomorrow.

Republicans will also call two of the firefighters from that case to testify later in the week.

The activist groups are up in arms tho, claiming they will be watching for racism from everyone except the person they are backing, Justice Sotomayor:

Latinos will be watching Sonia Sotomayor’s confirmation hearings “like hawks” for evidence that senators on the Judiciary Committee are mistreating the Second Circuit Court of Appeals Judge, or are mischaracterizing her record, leaders of Latino political, professional and advocacy groups tell ABC News.

“We accept tough questions. But what we are going to object to are questions that misrepresent the judge or that distort her record,” says Estuardo V. Rodriguez, director of Hispanics for a Fair Judiciary. The nonpartisan umbrella organization includes the Hispanic National Bar Association, U.S. Hispanic Chamber of Commerce, and the Mexican American Legal Defense and Education Fund.

Of course when its a Hispanic nominated by a Republican the Democrats sing a different tune: (via Hot Air)

Second, yesterday’s meeting focused on identifying the most controversial and/or vulnerable judicial nominees, and a strategy for targeting them. The group singled out three — Jeffrey Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline Kuhl (9th Circuit) — as a potential nominee for a contentious hearing early next year, with an eye to voting him or her down in Committee. They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold off Estrada as long as possible.

And while all this is happening the left is doing their best to run Ricci, the firefighter who’s case was wrongly decided by Sotomayor, into the ground:

The widespread criticism of Sonia Sotomayor’s dismissal of the New Haven firefighters’ claims must have struck a chord: Slate’s Dahlia Lithwick has published an attempted character assassination of Frank Ricci, the namesake plaintiff of the infamous Ricci case.

Lithwick’s move isn’t surprising — she’s a reliable left-wing partisan. What’s particularly amusing, though, is that the McClatchy newswire already has blown her cover, by reporting that People for the American Way has been urging writers to attack Frank Ricci on precisely the grounds cited by Lithwick. Lithwick obviously did little more than take a PFAW press release, reword it, and run it under her own name.

Not surprising in the least.  Joe The Plumber ring a bell?

Court rules for white firefighters over promotions
By MARK SHERMAN
The Associated Press
Monday, June 29, 2009 11:19 AM

WASHINGTON — The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Apparently not. On Friday, US District Judge Jeffrey S. White denied the Obama DOJ’s motion to dismiss the suit of Padilla v Yoo, where Padilla accused Yoo rendering legal memos that led to his “severe abuse” in a Naval brig for over three years. (Read the original complaint) The “severe abuse”, as defined in his complaint:

…. For nearly two years, Mr. Padilla was held in complete isolation and denied all access to the court system, legal counsel and his family. He was subjected to mistreatment including, but not limited to extreme and prolonged sleep and sensory deprivation designed to inflict severe mental pain and suffering; exposure to extreme temperatures; interrogation under threat of torture, deportation or even death; denial of access to necessary medical and psychiatric care; and interference with his ability to practice his religion. In the year and a half Mr. Padilla remained in the Brig after he was granted limited access to legal counsel, much of this severe abuse continued.

Padilla’s attorneys’ argue that it was Yoo’s legal memoranda that provided proximate legal basis for his “severe abuse”.

The WSJ legal blog noted shortly after the Inaugural, the Obama admin DOJ found itself with odd bedfellows by continuing the Bush DOJ strategy advocating dismissal of the charges. This was especially ironic, as noted by Josh Gerstein at Politico, because Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen. Le femme Johnsen has been dubbed the “anti-Yoo” by liberal mag, Mother Jones, because of her strident criticism of Yoo’s memoranda – calling one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.”

If it’s not almost laughable that those who spent their entire campaign debasing the Bush admin, then pick up where they left off not only in policy, but in legal defense strategy, it’s pathetic to find that Judge White chooses to ignore a SCOTUS ruling merely weeks ago. In that ruling, Javaid Iqbal, a Pakistani Muslim detained for over a year in NYC following the 911 attacks, could *not* sue former AG John Ashcroft, FBI Director Robert Mueller, and a dozen or so others for their policies.

Where is the logic? Or could it be Judge White was mentally vacationing, and paying no attention to SCOTUS when considering a similar situation of “supervisory liability”. And, in fact, since Yoo would have no constructive knowledge of what was being done with his legal opinion by WH and intel officials, it’s impossible to consider he could bear any responsibility whatsoever for Padilla’s treatment in a military Brig. A legal opinion is just that… an opinion, not a mandate or policy.

But aware of the SCOTUS decision, White had to be. Even Josh Gerstein at Politico pondered the possibility the SCOTUS decision would tank Padilla’s mirror case in SC against Rumsfield/Ashcroft. As he pointed out, Obama’s DOJ filed new papers INRE the Padilla defense, specifically pointing to the SCOTUS rule.

The new papers point to the Supreme Court’s ruling, 5-4, last month that a Pakistani man arrested in the wake of the 9/11 attacks, Javaid Iqbal, had not made specific enough allegations to proceed with a lawsuit alleging discrimination by Attorney General John Ashcroft and FBI Director Robert Mueller. My story on that ruling is here.

“Iqbal compels the dismissal of the claims against the Individual Federal Defendants because, like the plaintiff in Iqbal, Plaintiffs here offer only ‘conclusory statements’ without pleading ’sufficient factual matter to show’ that each Individual Federal Defendant purposefully and personally violated their constitutional rights.” the DOJ filing in South Carolina said. The California filing simply pointed to the Iqbal case, without explicit argument–a custom dictated by local practice since the case was already argued.

Gerstein does note that the analogy between Iqbal and Padilla may differ since Ashcroft and Mueller were not directly involved in the sweep of suspects held after 911. While he says that Padilla did have direct involvement with admin officials, I disagree that John Yoo, himself, had direct involvement with Padilla or his ultimate fate in military detention. Again… Yoo rendered a legal advisory opinion, but was not involved in formulating policy, nor implementing law enforcement action.

I’m more than curious to figure how this Judge finds Yoo may be personally culpable. However I don’t find any written opinion available yet by Justice White, and hence have only a few quotes he offers up as clarification for his anything but clear ruling. This opinion must have been concocted in a judicial vacuum, since his few statements totally ignore Iqbal.

White wrote, “The specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States.”

The decision keeps the lawsuit in place for further proceedings and a possible future trial.

~~~

In a 42-page ruling, White rejected a series of Justice Department arguments for dismissal of the lawsuit, including claims that courts should not interfere in executive branch military decisions and that Yoo could not be sued for his government work.

The judge wrote, “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.”

UPDATE: According to a Jan 2008 post on Balkinization by David Luban, that argument for personal culpability by Yoo lies in his “membership” in a five-man panel of legal advisors to Bush, and called (by someone… media? Themselves?) the War Council. In addition to Yoo, others included Alberto Gonzales, David Addington, William J. Haynes, and Tim Flanigan. The Tom Lasseter article (linked above) in the Buffalo News obviously demonstrates bias when he describes their duties as:

The quintet of lawyers, who called themselves the “War Council,” drafted legal opinions that circumvented the military’s code of justice, the federal court system and America’s international treaties in order to prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes.

This should come as no surprise that a panel of legal advisors, pondering the dicey issue of detaining and interrogating suspected terrorists for a CIC, is described as a concerted attempt to “circumvent” justice by Mr. Lasseter… aka a McClatchy journalist hack.

My comment still stands. All CIC’s have legal advisors. They do not create nor implement the policy. They evaluate the situations from a legal perspective, advise the CIC, and all power of decision making and action lies with others.

However, the bright side to all this is… should this decision stand thru the appellate process… every one of Obama’s 20+ “czars” plus bloated admin should be quaking in their Ferragamo’s and Lanvin cap toe sneakers. END UPDATE:

But that’s not the end to the irony here. White, a 2002 Bush appointee, twice quoted Sandra Day O’Connor’s scribblings in a 2004 decision, saying …”a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”

This of course makes one ponder… in the face of the SCOTUS Iqbal opinion, why does White believe that Padilla retains the right to sue administrative officials that serve only in an advisory capacity with no direct involvement in his fate? Just what supervisory liability does he believe Yoo has?

As I said in my previous Iqbal post (linked above), the SCOTUS opinion only appeared to fall on the side of the government officials when, in fact, some emphasis was placed on the petition being “deficient”… ala failing …”to plead sufficient facts to state a claim for purposeful and unlawful discrimination against petitioners.” Iqbal was remanded back to the lower courts, and it remains to be seen if they amend that petition that more clearly states discrimination.

But considering Iqbal/SCOTUS as it stands now, I am stunned to see how the NorCal District court failed to reference the SCOTUS decision in any way when considering his ruling. It makes you wonder if the left and right hands of the judicial system have a clue as to what the other is doing.

John Yoo has been a controversial figure on what many consider his more harsh stance on a POTUS’s ability to use force abroad without Congressional approval. While he did criticize Bill Clinton for his “Imperial Presidency”, he did support Clinton’s Serbian action as Constitutional. Perhaps, since he was born in Seoul, South Korea, he is acutely aware of the hazards of being soft when it comes to dictators and terrorists.

And frankly, I don’t have a problem with his description of what constitutes torture. Certainly Padilla’s laundry list of complaints – prolonged sleep deprivation and “psychological” abuse – strikes me reaching for the moon by using legal whining. Anything can be considered “mental abuse”, fer heavens sake. Wonder if that guy’s taken a good look around at what our Chicago-style POTUS, his lackies, and our Congressional members are doing to the private enterprise/business world right now?

But then, I guess threats and blackmail aren’t on the “torture” laundry list.

Here’s the real head scratcher… just how the heck did UC-Berkeley ever allow John Yoo to be a Distinguished Chair and Dean with their law school? At the moment, I believe he is a visiting professor down in Orange County, CA at Chapman University School of Law. Good thing… I can’t see Berkeley welcoming him back with open arms now.

But back to Padilla… lest anyone has sugar plum fairy visions of him as an upstanding US citizen and victim, he was found guilty of “…taking part in a conspiracy to murder, kidnap and maim people in Afghanistan, Chechnya, Bosnia, among other countries, in the years between 1993 to 2001. “ Padilla is now serving his 17 year sentence at the supermax prison in Florence, CO. And if Obama has his way, he’ll have friendly Gitmo detainees also in residence to keep him company.

I’m not so sure it looks better in context.

~~~

…Sotomayor makes the indisputable point that decisions made by judges are at least partially impacted by their biological characteristics and life experiences. Human judgment clearly plays a role in such decisions; hence the need for human judges, as opposed to “law interpreting algorithms” in the first place. A key point, of course, is that in the passage under consideration, she goes beyond this and asserts not just that her decisions would therefore be different than those made by a white male but “wiser.” What she doesn’t address is that if we take a relativist approach to making judgments, how can one judgment said to be wiser than another? What is the objective standard of wisdom to which she implicitly appeals when making her assertion?

This opens up what I think is the much more serious problem with her speech. She attacks an extreme position (a cartoon really): that there is literally no role for inherently subjective human judgment on the bench. That is, she disputes the cartoon of absolute objectivity. Fair enough. Of course, this is not exactly a new insight. It seems to me that a thoughtful jurist would then be compelled to find the limit condition to subjectivity, or else assert that there is no such limit. In other words, is anything asserted by any judge equivalently valid as an interpretation of the law as any other statement? Is there any such thing as law, really? Or is it all just rhetoric used in support of power politics? With no stopping condition the legal philosophy that refuses to accept the idea of objectivity becomes legal nihilism: The law is whatever those who have the loyalty of the armed forces say it is, or more precisely, act as if it is.

Completely valid arguments because if we go full circle on their being no absolute objectivity then there really is no law, only the dictates from those in power. I’m sure the left would love that when their guy is in power but I have a feeling they wouldn’t be too keen on the idea when a conservative is at the head of the table.

Some lefties are arguing that Alito said the same thing here:

Which is completely invalid since he doesn’t say what Sotomayor said, he never said he would be MORE qualified due to his life experiences. Just that it impacts his rulings somewhat.

Now, to add something to my post yesterday on Sotomayor’s Ricci decision, the LA Times believes the case will be overturned:

In a decision that could fuel controversy over Supreme Court nominee Sonia Sotomayor, the high court this month is expected to overrule one of her key appellate court rulings.

~~~

The ruling in the firefighters’ case promises to be one of the most important of the Supreme Court term because it could affect public agencies across the nation. It is sure to gain even greater notice now that President Obama has nominated Sotomayor for the Supreme Court. Critics contend that Sotomayor’s opinion shows that she would tilt in favor of racial minorities.

Tilt in favor of racial minorities eh? As she alluded to, absolute objectivity is hogwash so why not ignore the law and make new ones to prop up those races she feels are the wiser ones?

UPDATE

Tom Elia on what the other jurists on the Supreme Court will argue based on their upbringing:

Chief Justice Roberts: “As a man of Czech ancestry, I had occasion to eat a lot of cabbage and dumplings growing up in Indiana, which doubtless contributed to my status as a slow-footed high school linebacker and wrestler — so you clearly don’t understand why my point-of-view is the only correct one.”

Justice Stevens: “I may be an 89-year-old man, but as a child of privilege who met Amelia Earhart and Charles Lindbergh at one of my father’s luxury hotels, saw FDR give his nomination acceptance speech at the 1932 Democratic convention, was in the stands to see Babe Ruth’s “Called Shot” against the Cubs in the 1932 World Series, then saw my father’s hotel business go bankrupt during the Great Depression — and saw him wrongly and unjustly convicted of fraud, I’m very sorry to say: I’m right, you’re wrong.”

Justice Scalia: “My father was born in Sicily, and my wife and I have raised nine children. Clearly, you lack my background. As the senior Catholic on The Court — the de facto judicial Papal Nuncio, if you will — you as the junior Catholic member should follow my argument, because I’m the one who is right. Have some garlic, it might help your thought process.”

Read the rest.

During the audio you will hear Judge Pooler, Judge Sotomayor and the attorney for the firefighters, Karen Lee Torre. There are a few interesting snippets from the audio like when Judge Pooler asks of Torre why shouldn’t Hayden v. County of Nassau dispose of the Ricci case. Torre says in effect that in Hayden no one was hurt. Pooler says that no one was hurt in Ricci either at which point Torre interrupts and says:

No one was hurt? For heaven’s sakes, judge, if they didn’t refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren’t hurt? They’re out $1,000 a piece. Half of their marriages were strained by this. They spent 3 months of their lives holed up in a room like I was and you were when we took the bar exam.

Torre also does an outstanding job of detailing why throwing out an exam in favor of an easier one would cost lives:

I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. … Please look at the examinations. … You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn’t require any knowledge to do the job.

Not long after is when Sotomayor comes in:

JUDGE SOTOMAYOR: Counsel … we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there’s an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you’re unqualified–the pass rate is the pass rate–all right? But if your test is always going to put a certain group at the bottom of the pass rate so they’re never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?

KAREN LEE TORRE: Because they already developed it, your honor.

JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it’s valid.

KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid…. They had evidence that the test was job-related and valid for use under Title VII.

I can’t wait to hear the evidence that Sotomayor has that would prove the test was “always” going to put certain groups at the bottom of promotion lists.

John McCormack asks the same thing:

Did she actually examine the test to see if it was unfair to a particular group? And, how, precisely, does she think it’s possible to create a test that “measures knowledge in a more substantive way”?

I’m hoping this stuff will be asked during her confirmation hearing.

In 2001, President George W. Bush nominated former Justice Department lawyer Miguel Estrada to a seat on the federal courts of appeals. In that instance, as today, the nominee was was a Hispanic with a compelling story and impressive qualifications. And some of the very people who are today praising Sotomayor spent their time devising extraordinary measures to kill Estrada’s chances.

Born in Honduras, Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada’s nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations — People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others — that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.

In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. “They also identified Miguel Estrada as especially dangerous,” the staffer added, “because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.”

It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.

Shortly after President Obama announced his nomination of Sonia Sotomayer to fill the Supreme Court vacancy left by retiring Justice Souter the “news” media chirped in cheerful chorus the line about Sotomayor’s “compelling life story.” With all the gushing going on in the liberal media over Sotomayor’s modest upbringing it’s no wonder they didn’t find the time to explore her background and inform readers and viewers about Sotomayor’s controversial views and decisions.

Conservatives may recall how the “news” media ignored the dirt poor story of Clarence Thomas or the immigrant to greatness rise of Miguel Estrada, whom President Bush nominated to the Federal Bench and Democrats filibustered.

Slublog writing at Hot Air contrasts the treatment Sotomayor received from the NY Times editorial board to that given Clarence Thomas:

NYT: Political considerations, life experience only good if we like the results
by Slublog
Hot Air
May 27, 2009

The New York Times editorial board has nothing but praise for Judge Sonia Sotomayor today, plus a frank acknowledgment of the politics at play:

If Judge Sotomayor joins the court, it will be a special point of pride for Hispanic-Americans — as it was for Jews, blacks and women before them to see one of their own take a seat on the highest tribunal in the land. It will also bring the paltry number of female justices back to two. And as Democratic Party strategists have no doubt calculated, the selection could give Mr. Obama and his party a boost with a key voting group.

In October of 1991, the editorial board had a much different opinion of such political considerations:

The fault, in the end, is not that of the nominee but of the man who nominated him, the patron of little-known, untested or inflammatory appointments for offices reaching up to the Vice Presidency. By nominating this black conservative, President Bush serves a narrow partisan interest when the public has a right to expect him to nominate a lawyer or judge of proven distinction.

The Sotomayor editorial has great praise for how Sotomayor’s life experience has shaped her judicial rulings. The day after Clarence Thomas was nominated to the Supreme Court, the Times dismissed his life experience because they didn’t like how it influenced his judicial philosophy:

As the nation waits to learn more about Clarence Thomas, the questions will concern not so much his talent but his character. Even his rise from poverty and racial isolation will be less interesting than how that experience has affected his regard for other Americans and whether he understands how their lives and rights are affected by law and official action.

The Times editorial board does display a double standard, but at the same time an appalling consistency to the belief that one cannot be a member of a historically aggrieved class and hold conservative viewpoints. To do so, in the minds of too many on the left, means you are fair game for invasions of your privacy, hate mail and in the case of Thomas, death wishes.

All that launched at Clarence Thomas and you didn’t hear Democrats worry that by opposing such a hard luck story they might suffer policitally.

E Pluribus Unum, writing at Red State answers the question as to why the separate treatement of the two:

Why was Clarence Thomas dragged through hell in his confirmation process? Why was he called an Uncle Tom? Why was Miguel Estrada left to rot for over 2 years in a confirmation process, and held up ultimately by filibuster?

Oh, simple, really.

Thomas and Estrada do not believe they have some amazing wisdom that exceeds that of James Madison, Alexander Hamilton, George Washington, Thomas Jefferson, John Adams, and Martin Luther King, Jr. They see justice as equal justice under the law and colorblind. They see the role of a judge as impartial, bound by the Constitution and duly enacted laws. They see their role as a humble one. They look at people who are white, black, Latino, or Oriental, and they see people.

The left sees themselves as brilliant, the Constitution as an annoyance, the law a tool to secure power and control people. They look at people, and they see classes, races, and divisions.

Therefore they love Sotomayor, and hate Thomas and Estrada.

What’s even more interesting is the view of her from those who have worked with her:

Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

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.”

~~~

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details.

The ones he did find who had a favorable opinion of her almost all brought up the fact that she doesn’t wilt like a flower under heavy pressure.

Yeah….much better to have a Supreme Court justice who is domineering rather than intelligent.

As you can imagine the lefties went a little nuts over his article and demanded to know who these sources were so a few days later he put out another post:

Readers have asked for more information about my sources. A few weeks ago, I received phone calls from eminent liberal scholars I know and trust. These scholars closely follow Sotomayor’s work and expressed questions about her temperament. They did not have axes to grind or personal agendas; they are Democrats who want President Obama to appoint the most effective liberal Supreme Court justices possible and were concerned Sotomayor might not meet that high standard. They put me in touch with others in the same situation–mostly former Second Circuit clerks and prosecutors who have argued before her–and nearly all of them expressed the same view, with exceptions I noted in the piece.

~~~

I was satisfied that my sources’s concerns were widely shared when I read Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them. Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive–not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system–as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Another quote from that almanac is telling:

Lawyers interviewed said Sotomayor writes good opinions. “Her opinions are O.K, by and large.” “She writes very clear and careful prose in her opinions.” “Her writing is good.” “Her opinions are generally well-reasoned and well-argued.” “She writes well.” “She is a very good writer.” “Her writing is not distinguished, but is perfectly competent.”

“Competent”. Not steller, but just ok.

Awesome

McAfee did a study on what search terms constitutes the most dangerous on the web:

Those searching for Obama are four times more likely to get infected with a virus than those searching for viagra (6.2% vs 1.6% risk)!

Check out The Most Dangerous Search Terms…and beware what you search for!

Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. Instead, the tag line for this appointment says it all. The president wants to choose “a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.”

Obviously, none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.

He spends most of the article on just one subject, one we should all be worried about with a Sotomayor nomination, the intrustion of government into business. We saw how Obama works with his bullying of AIG and the automakers, and there is definitely more of this kind of crap to come:

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo’s home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the “or else” diplomacy of the Obama administration in business matters.

Meanwhile Walter Olson writes that the video of Sotomayor talking about policy being made should be ignored but the affirmative action rulings should definitely be highlighted…..but, in the end, they will be explained away and ignored:

Likely to develop more traction is criticism of Sotomayor’s actual approach toward affirmative action issues, starting with the now-famous line from her speech to a diversity conference in 2001–”I would hope 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 who hasn’t lived that life”–and continuing through the pending New Haven case where some fellow judges thought she gave short shrift to firefighters’ complaints of reverse discrimination.

Prediction: She’ll explain away the 2001 line as not reflecting her current thinking, and won’t have to discuss the firefighters case since it might land back in her court on remand.

He makes a good case for the highbeams being directed at two other cases however, two cases that may bore people but are important:

Merrill Lynch v. Dabit, where she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law (reversed 8-0 by the high court), and Knight v. Commissioner, on the deductibility of certain trust fees, in which the court upheld her result but unanimously rejected her approach as one that (per Roberts) “flies in the face of the statutory language.”

But my favorite news to come out today, and one that is not surprising, is this Justice’s yearbook page from college:

Yup….quoting Norman Thomas, the socialist, pacifist, and six-time presidential candidate for the Socialist Party of America and the man who said the following: (Reagan quotes Thomas in this audio clip @ 1:25)

“The American people will never knowingly adopt socialism. But, under the name of “liberalism,” they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened.” He went on to say: “I no longer need to run as a Presidential Candidate for the Socialist Party. The Democratic Party has adopted our platform.”

Wonderful.

More here.

Obama played the race card, followed by the sex card and the liberal card today when he picked federal appeals judge Sonia Sotomayor as the nation’s first Hispanic Supreme Court justice on Tuesday.

Was his choice a person to serve ALL Americans on the court or one specifically selected to advance the rights and agenda of specific groups and ideology? You decided:

• Curt posted the video of Judge Sotomayer declaring that courts are where “policy is made.” That will be news to the Senators who review her qualifications.
• Sotomayer believes women are better judges. She said that women, particularly Hispanic women “would more often than not reach a better conclusion than a white male.”
• Carrying that theme further she insisted that “gender and national origins may and will make a difference in our judging.” She went on to add that “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” So much for equality before the law!

This is only the start of what we know about her and there will certainly be more to come, both good and bad, in the days to come. For Republicans in the Senate the question will be: does she have the judicial temperament and qualifications to serve on the court? If so, most will likely vote for her. If not, they must oppose her vigorously.