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7/21/2009
Burri: Sotomayor? - I'm ambivalent
The thing about Sonia Sotomayor: she isn’t going to matter much.
Well, she might matter. But not in the way one might think. Not in a legal sense. At least, not yet.
I’m disappointed and ambivalent about Sotomayor’s confirmation hearings. Ambivalent, because: who cares? The hearings are mostly show, anyway. The odds that something will come out – something that undermines her nomination – are slim, at best. Something that completely dunks her nomination?
And even if it does, so what? The president will just nominate somebody else.
It’s not like she’s changing the Court’s ideological makeup. She’s replacing Justice David Souter, a reliably "liberal" vote. No matter how liberal Sotomayor might be, her presence doesn’t change anything. Including the potential for a future liberal majority.
Look: President Obama is far more likely to nominate liberal judges than otherwise. If one of the “conservative” justices retires or dies while Obama’s in office…
…well, then it won’t really matter who, specifically, the nominees were. We’ll have a liberal court, and there was never anything we could have done about it.
Except win the 2008 presidential election. But. Y’know.
So that’s why I’m ambivalent. Oh, sure, there’s a morale factor: showing some fight would be good for the troops. Showing some effective fight to prove there’s still life in the old elephant. That SuperObama and his Liberal Legions aren’t quite as all-powerful as we’re being led to believe.
So that would’ve been nice. But, ultimately, it wouldn’t have mattered. Americans – most of them – would have gone about their summers: swimming lessons, camping trips, wondering what 70-degree highs in July mean for Al Gore’s future and asking: Sonia who?
I said earlier that Sotomayor won’t matter in any legal sense…yet. Of course, I meant that she won’t change the court’s makeup: thus, her presence won’t really affect any of the Court’s opinions.
But she could still matter. And she could matter in a positive way for the conservative cause.
How so?
Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states. Okay, so…what, that’s federalism, right? The U.S. Constitution applies to the feds, state constitutions apply to the states.
Maybe. But then how come the 14th Amendment reads in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States?”
Granted, it all depends on the definitions. Still: if the Second Amendment doesn’t apply to the states, then how can Roe v. Wade?
Then there’s this:
A 2004 opinion she joined also cited as precedent that "the right to possess a gun is clearly not a fundamental right." Not a fundamental right.
Two Senators questioned Sotomayor on her Second Amendment position. I found those lines of questioning inadequate and frustrating. Disappointing. Frittering around the edges.
Just ask her right out: do the American people have a right to own firearms? Or not?
But, I guess, refer to my previous ambivalence. She’s on the Court now – or will be soon, unless she’s caught snorting the ashes of murdered children – and she’s unlikely to vote differently than Souter did, anyway.
Still: if she’s writing opinions; speaking in public; discussing the law…if she really believes there's no right to own a firearm…a tenured Supreme Court Justice might just say something embarrassing for the Party that nominated her. The Party that, as time goes on, will be defendingold turf more than conquering new.
She might just be useful, in a Joycelin Elders sort of way.
Lance Burri is a contributor to the Badger Blog Alliance and The TrogloPundit.
COMMENTS
Who is nominated and eventually occupies that seat DOES matter, but the hearings don't because the outcome is pre-determined.
Even IF the worst possible hidden secret about this nominee were to come out (you make up your own, it could be anything), she's going to get the thumbs up and will be appointed.
On principle, it's worth fighting over ... in reality, there are many other battles to be fought where there may actually be a chance of making a difference.
Jeff Riedl (Tue Jul 21 08:44:03 2009)
If Senate confirmation hearings are going to look like Sotomayor's, we should just skip them altogether. She WAS asked directly her view of the right to own guns, and like she has with all other inquiries, deflected the question and did not provide an answer. She has been coached to "play not to lose" by avoiding any sort of forthcoming or direct answers, and the Senate committee is allowing her to get away with it. For an excellent perspective on all of this, visit Rick Esenberg's blog Shark and Shepherd.
Tom Sladek (Tue Jul 21 10:04:46 2009)
There's an ethical problem with judges answering questions directly. They might walk right into one that would arise in a case before the Supreme Court in the future.
Before she was elected I asked Patricia Roggensack what her view was on hunting and she told me she couldn't answer that question directly because of the above statement.
It's not like questioning legislators. They should answer direct questions.
That said, I still believe that Sotomayor will rule according to her Hispanic heritage, not the Constitution.
C.R. Stevenson (Tue Jul 21 22:16:22 2009)
If judges aren't supposed to answer questions about their views, then why were conservative nominees questioned about views on abortion, and then criticized for not answering directly?
emily matthews (Wed Jul 22 10:26:34 2009)
Excerpt of article by David Rusin:
"Three qualities in particular should set off alarm bells for those concerned about free speech:
* Advocacy of the "living Constitution" model. When judges are "amending the Constitution and other laws as the judges see fit," a straightforward statement such as "Congress shall make no law … abridging the freedom of speech, or of the press" can become disturbingly pliable. If legal reasoning could be found to restrict political speech (e.g., McCain-Feingold), could not the same fate befall other types of speech?
* Citation of foreign law. This increasingly popular trend on the Supreme Court should put fear in the heart of anyone intent on protecting anti-Islamist speech, as practically every Western country has hate speech laws on the books, many of which have been employed against critics of Islamism. Just ask Ezra Levant, Mark Steyn, Oriana Fallaci, Geert Wilders, and a host of others.
* Fixation on group identity. Those who see the group, not the individual, as the central building block of society are more likely to curtail individual rights for the purpose of mollifying certain racial, ethnic, gender, or religious groups. Such thinking undergirds European-style hate speech laws."
Go to www.islamist-watch.org/blog/2009/07 for the rest of the article.
emily matthews (Wed Jul 22 10:53:42 2009)
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