Obama Picks Supreme Court Nominee Based On Affirmative Action Standards, Not Judicial Ability

Richard Epstein rakes Obama over the coals for the reasoning behind his SCOTUS pic:

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.

Curt

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