Today as the US Senate began hearings on the Sotomayor nomination, I joined other members of the Colorado Judicial Network in urging that the judge not be confirmed to this immensely powerful lifetime appointment, for which her well-documented constitutional views render her unfit in my opinion. Here in the state, my voice is united on this issue with those of state Sen. Kevin Lundberg, former Sen. Mark Hillman, Independence Institute president Jon Caldara, and other constitutionalists. Our news release, with supporting documentation from an affiliated group in Washington DC, was as follows:
============================== COLORADO JUDICIAL NETWORK: VERDICT ON SOTOMAYOR IS "NO"
The Colorado Judicial Network in cooperation with Judicial Confirmation Network (JCN) (www.judicialnetwork.com) today urged Senators to oppose the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, in a summary memo to JCN members and supporters.
"We fully expect Judge Sotomayor to attempt to explain away her record by repeating the White House’s talking points about her newfound commitment to the rule of law and judicial restraint," said JCN Counsel Wendy E. Long. "It would not surprise us if President Obama’s nominee suddenly testifies on the record with words similar to those used by Chief Justice Roberts and Justice Alito, two nominees President Obama voted against on the basis of judicial philosophy. Senators must see through this double-talk. She is a judge who believes it is fine to decide cases based not on even-handed application of the laws to all, but based on her own personal views and prejudices."
Gary Marx, JCN Executive Director, said: "Past performance is indicative of future results. Her record of decisions and statements is a far better predictor of what she would do in the future, as a Supreme Court Justice, than any self-serving testimony she may offer this week."
The entire JCN memo is set forth below. Colorado Judicial Network Members are as follows:
John Andrews, President, Backbone America. Former Colorado Senate President.
Jon Caldara, President, Independence Institute.
Mark Hillman, former State Treasurer.
Jeff Crank, State Director, Americans for Prosperity.
Jim Pfaff, Judicial Confirmation Network Colorado coordinator. former State Director, Americans for Prosperity and former President/CEO, Colorado Family Institute.
Kevin Lundberg, Colorado State Senator
For additional information about Sotomayor, visit www.aboutsoniasotomayor.com
TEXT OF JUDICIAL CONFIRMATION NETWORK MEMO
TO: JCN MEMBERS AND INTERESTED PARTIES
FROM: WENDY E. LONG, COUNSEL
GARY A. MARX, EXECUTIVE DIRECTOR
DATE: JULY 13, 2009
RE: SONIA SOTOMAYOR: THE VERDICT
This first day of Judge Sonia Sotomayor’s confirmation hearings is focusing the attention of the press and the public on the important role of the Supreme Court in our constitutional republic and in the lives of Americans.
We have reviewed the parts of her record that have been made available to the Senate and the public. (Important parts of that record still have not been disclosed, such as what input she had into the legal strategies advancing racial quotas and abortion-on-demand that the Puerto Rican Legal Defense and Education Fund advanced during her years of leadership, for example.)
We have seen enough to conclude that nothing that Judge Sotomayor or her liberal backers say in her hearings this week can alter the significant record before us, and accordingly, we are today asking Senators to vote “no” on her nomination. Far more relevant than whatever she says this week, as a result of White House coaching, is what she has said and done in the past. In short, past performance is indicative of future results. Her record of decisions and statements is a far better predictor of what she would do in the future as a Supreme Court Justice than any self-serving testimony she may offer this week.
Judge Sotomayor’s two decades of speeches, law review articles, legal advocacy, and judicial decisions lead us to conclude that, if she is confirmed, Justice Sotomayor would be a supreme liberal judicial activist, outdoing the Justice she is replacing, David Souter, in this regard. Her view that judges should rely on their own views, instead of the law as written, in deciding cases would take our nation a critical step further away from the Rule of Law and toward the Rule of Nine Lawyers.
According to the latest CNN poll, Judge Sotomayor already has one of the lowest public approval ratings among recent Supreme Court nominees. We believe that if members of the Senate Judiciary Committee ask her fair and objective questions that illuminate her record and give the American public an opportunity to judge it for themselves, an even greater proportion of Americans will agree that she is a liberal judicial activist in the mold that President Obama promised Planned Parenthood when he would appoint judges who decide the “hard” cases based on personal politics and feelings.
Senators will begin to focus on the details of her record in the next few weeks. We do not want them to mistakenly conclude that what she says during this week’s Judiciary Committee hearings can outweigh what she has done and said over the past 30 years. The verdict on Sonia Sotomayor should be “no.”
I. Judicial Philosophy and Views Regarding the Rule of Law
· In our country, judges are the servants of a written Constitution (the first one in history, now widely emulated) and the laws we make through our elected representatives. This is the definition of "self-government," or "government by the consent of the governed." So in America, under the "rule of law," judges are bound to apply neutrally the law that is written in the Constitution, Bill of Rights, and laws enacted by representative bodies of the people.
· In her speeches and law review articles, Judge Sotomayor has rejected this view of the responsibility of judges, called “judicial restraint.” Instead, she embraces the idea that judges’ ethnic and gender characteristics, and their personal experiences and opinions, should be the basis of their judicial decisions. We call this “judicial activism.” It was expressed precisely by Judge Sotomayor, speaking at Duke Law School, when she said: “The court of appeals is where policy is made.”
· Judge Sotomayor has repeatedly rejected the notion that justice is blind, instead expressing support for the idea that a judge can put her thumb on the scales of justice, tipping them to the side she prefers – that the law and our courts are meant to benefit people of certain backgrounds over others. For example, she favors racial quotas, and thinks it is fine as a judge to have what the President has called “empathy” for one race and not for others.
· In La Raza Law Journal, Judge Sotomayor stated that “Personal experiences affect the facts that judges choose to see. . . . I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
· In the same article, she stated: “Whether born from experience or inherent physiological or cultural differences …our gender and national origins may and will make a difference in our judging.”
· On at least half a dozen occasions over the span of a decade, Judge Sotomayor stated some variation of her view that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a while male who hasn’t lived that life.” The President and the White House spokesman have tried to say it was a momentary bad choice of words. The record shows this is false; it is her well-considered view.
· In another law review article, Judge Sotomayor argued in support of the philosophy of “legal realism,” which holds that the public has swallowed a “myth” that “law can be certain and stable.” Instead, she thinks that the law is basically unknowable by ordinary citizens and is only whatever biased judges say it is.
· In U.S. v. Daniel Gonzalez, as a judge on the District Court, Judge Sotomayor went out of her way to criticize our nation’s criminal justice system and apologize to a cocaine dealer, calling him a “victim” of the capitalist system. She explained that she hoped the drug dealer “will appreciate that we all understand you were . . . a victim of the economic necessities of our society,” and that the mandatory sentence was “a great tragedy for our country.”
· Similarly, in U.S. v. Louis Gomez, Judge Sotomayor apologized to another cocaine dealer at another sentencing, calling our laws an “abomination.” According to Judge Sotomayor, “I hope that yours will be one among the many [cases] that will convince our new president and Congress to change these minimums.”
· Judge Sotomayor agrees with far-left liberals that foreign and international law are “very important” to American judges and serve as a source of “good ideas.” In a 2009 speech to the ACLU she defended the use of foreign and international law to construe the U.S. Constitution and laws, saying “How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas.”
II. Record of Radical Activism and Extreme Views
· From 1980 to 1992, Judge Sotomayor held a number of leadership positions with the Puerto Rican Legal Defense and Education Fund (PRLDEF), including member of the Board of Directors, Vice President of Board of Directors, Chair of Litigation Committee, Chair of Education Committee, Special Vice Chair, Second Vice Chair, and First Vice Chair.
· An attorney who worked for the Fund during that time said, “Sonia displayed an increasing amount of leadership on the board.” A New York Times story after her appointment to the federal district court described her as a “top policy-maker” at the Fund. Another Times story, written after her Supreme Court nomination, described her time on the board, saying she “stood out, frequently meeting with the legal staff to review the status of cases.”
· Documents delivered by PRLDEF to the Senate Judiciary Committee confirm that Sotomayor was intimately involved in the Fund’s controversial work, though she has yet to explain the extent of her involvement or details about litigation she oversaw.
· While she was a member of its Board, PRLDEF filed briefs in several high profile abortion cases. The PRLDEF took extreme positions, favoring mandatory public funding of abortion and declaring it to be a fundamental right – positions that, as Americans United for Life has noted, are more extreme than those of Justice Souter, the liberal activist she would replace on the Court.
· The PRLDEF briefs were often co-signed with radical groups, including the World Workers Party, a leading communist organization, and the National Center for Lesbian Rights.
· When she was on the Board, PRLDEF frequently pursued racial quotas and preferences. One case, in particular, stands out for its interesting parallels to the Ricci firefighter lawsuit. As the New York Times has reported, “[i]n the 1980s, the Puerto Rican Legal Defense and Education Fund sued the New York City Police Department, claiming that its promotion exams discriminated against Latinos and African-Americans.” PRLDEF sued on the basis that the exams “were yielding unfair results: Too many whites were doing well, and too many Hispanics and African-Americans were not.”
· In one PRLDEF document from May, 1992, “Litigation Highlights,” PRLDEF celebrates a settlement of the case against the New York City Police Department, saying, “we obtained quota promotions for Latinos and African Americans to the rank of sergeant.”
· PRLDEF’s record of extremism extended beyond the courtroom. For instance, Sotomayor was one of three members of a PRLDEF Board task force that issued a report in March 1981 urging the organization to oppose the death penalty. The report’s baseless conclusions included the racially obsessed trope that “Capital punishment is associated with evident racism in our society” and “the state of humanistic thinking in the world judge[s] capital punishment as a violation of those values.”
· In another matter, PRLDEF attacked New York’s mayor after he criticized three Puerto Rican terrorists who shot up the chamber of the U.S. House of Representatives. The New York Times reported that PRLDEF’s President, Reuben Franco, said “[The Mayor] doesn't recognize that to many people in Puerto Rico, these are fighters for freedom and justice, for liberation, just as is Nelson Mandela, who himself advocated bearing arms.”
· In announcing Sotomayor’s nomination, the White House highlighted her time as a managing editor of the Yale Studies in World Public Order. The publication’s mission statement criticizes the “dogmatically emphasized fortress of state ‘sovereignty’” and the very idea of a “nation-state system.” It goes on to explain that “global interactions and communications” make a “sieve of the arbitrary demarcation between national and international law” and that “such a juxtapositions [is] no longer viable.” And it closes by emphasizing a central thesis of the Legal Realism movement that “[t]hose involved in a process of making, applying, and re-making of law are always making policy decisions involving value indulgences and deprivations.”
· In her senior thesis at Princeton, Sotomayor made several extreme statements indicating hostility toward the United States and an alarming degree of Puerto Rican nationalism. For example, she took the extreme position favoring independence for Puerto Rico and refusing to refer to Congress as the U.S. Congress, calling it “the North American Congress” or the “mainland Congress.” She also states, “Unlike the labelled ‘socialism’ philosophy of the forties, Operation Bootstrap was based on a negation of self-sufficiency and an acceptance of utter dependency on the colonial master, the United States.”
III. Case Law
Racial Quotas and Preferences.
· Judge Sotomayor rejects the notion that Americans are entitled to equal protection of the laws and instead supports the notion that judges are appointed to represent certain constituencies on the Court.
· In Ricci v. DeStefano, Judge Sotomayor applied her radical political preference for racial quotas to throw Frank Ricci and other firefighters out of court. She buried their claims asking for fair and equal treatment on a promotion exam after the City denied them promotions because not enough minority candidates passed the exam.
· Judge Sotomayor’s colleague on the Second Circuit, fellow Clinton appointee Jose Cabranes, exposed her attempt to bury the firefighters’ claims, noting that her summary dismissal of the case “contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.”
· The Supreme Court recently reviewed the Ricci decision. The standard Judge Sotomayor applied in the case was so extreme not even one Justice on the United States Supreme Court agreed with it.
· In Brown v. City of Oneonta, a seventy-seven-year-old woman was attacked and described her assailant to City of Oneonta police officers as a young, black man with a cut on his hand. Over the course of the next several days, the police conduct a “sweep” of Oneonta, stopping and questioning non-white persons on the streets and inspecting their hands for cuts. More than 200 individuals were questioned during that period, but no suspect was apprehended. Several of the university students and individuals questioned in the sweep filed a complaint against the City of Oneonta asserting that their questioning and the sweep violated the Constitution. Judge Sotomayor joined an opinion that went so far out of its way to apply racial preferences in favor of the suspects that one of her colleagues on the Second Circuit said it “would severely impact police protection.”
· Judge Sotomayor has shown more hostility toward Americans’ Second Amendment right to bear arms than any judicial nominee in recent history.
· In Maloney v. Cuomo, Judge Sotomayor ignored the very important constitutional Due Process arguments of a New York man who claimed that his Second Amendment right to bear arms was violated by New York state law, concluding with no reasoning whatsoever that the right to bear arms under our Constitution is not a “fundamental right.” She even made this ruling after the U.S. Supreme Court in the D.C. v. Heller decision had ruled that the Second Amendment right to bear arms is a right of individuals and not a group right.
· In another case, U.S. v. Sanchez-Villar, Judge Sotomayor agreed that it was a crime to possess a firearm in New York without even analyzing the argument by Sanchez-Villar that the law violated his Second Amendment right to bear arms.
· Judge Sotomayor’s record on property rights should concern every American who believes that our government’s ability to take private property from one person and give it to another in the name of “public use” is a threat to our liberty and our prosperity.
· In Didden v. Village of Port Chester, Judge Sotomayor sided with a local government that condemned private property for “public use” in what legal scholar Richard Epstein called “about as naked an abuse of government power as could be imagined.” As in Ricci and in Maloney, Judge Sotomayor decided the case in a very short opinion barely analyzing the important constitutional claims concerning the taking of private property.
Voting Rights for Felons
· In Hayden v. Pataki convicted felons who were in prison sued the state of New York alleging that it violated the federal Voting Rights Act by denying them the right to vote based on their race. Of course, they were not being denied the ability to vote based on their skin color but simply because they were locked up in prison. Judge Cabranes wrote a majority opinion upholding New York’s law on the basis that the Voting Rights Act did not encompass felon disenfranchisement laws such as New York’s. Judge Sotomayor dissented, arguing that the case should have been a clear win for the felons.
· Judge Sotomayor’s record in business cases is troubling and unpredictable, in keeping with her view that the law should not be stable or knowable—a view of the law that should concern every entrepreneur and business person.
· In Dabit v. Merrill Lynch, Sotomayor ignored the clear intent of Congress in passing securities litigation reform, which was designed to preempt abusive state law claims of securities fraud that trial lawyers had been filing with alarming frequency. The Supreme Court reversed her unanimously, enforcing Congress’s clear purpose to preempt such claims and forum shopping.
· She wrote In re Visa Check/Mastermoney in 2001, which affirmed the district court’s certification of a class and made it easier for claimants to bring frivolous lawsuits because “a motion for class certification is not an occasion for examination of the merits of the case.” She later signed on to In re IPO in 2006, where the Second Circuit came to the opposite conclusion. We do not know if she has changed her mind; we only know that she is unpredictable.
IV. Questionable Ethics
· Judge Sotomayor’s behavior as a lawyer, a judge and as a nominee to the Supreme Court reinforce the concern that she considers herself above the law and reveal that neither she nor the White House have the commitment to transparency that President Obama promised during the campaign.
· As a lawyer in the Manhattan District Attorney’s office, she ran her own separate law practice on the side, called Sotomayor and Associates. This was prohibited by the rules of the office, according to those who worked there at the time.
· Judge Sotomayor took steps in the Ricci case that are inconsistent with the rules of the Second Circuit in her attempt to sweep the firefighters’ claims under the rug by originally deciding it in an unsigned summary order. She avoided circulating the opinion to other judges such that it might escape their attention, until her fellow judge Jose Cabranes read about the situation in the local newspaper and followed up. Without this happenstance, she would have buried the firefighters’ claims and the case might never have made it to the Supreme Court, which reversed her.
· The White House proudly announced that Judge Sotomayor had delivered her answers to the Senate Judiciary Committee’s questions in just nine days. It was discovered almost immediately thereafter that Judge Sotomayor had failed to disclose an important memo she wrote for PRLDEF arguing against the death penalty in New York. She did not disclose the memo until JCN brought it to the public’s attention. And after a few more days of examining the nominee’s responses, it became clear she had failed to disclose not just that memo, but a significant amount of information regarding her time with PRLDEF. What has been made publicly available came only after Senator Leahy and Senator Sessions demanded disclosure by the organization itself. But Judge Sotomayor has still never disclosed important information regarding her relationship with that organization.
· Judge Sotomayor has disclosed next to nothing about her time with the Yale Studies in World Public Order. Though the White House highlighted her position as managing editor, they failed to provide the Judiciary Committee with materials that would shed light on the question of whether she agrees with the publication’s mission statement.
· The Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Accordingly, sitting federal judges avoid participation in partisan political activities in public. In April, Judge Sotomayor praised President Obama’s electoral victory in terms that were disturbingly political for a sitting judge. According to Judge Sotomayor, “The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”
In summary, Judge Sotomayor and President Obama share a belief that it is fine for judges to indulge their own political preferences and feelings when making decisions. That belief is demonstrable throughout Judge Sotomayor’s career, in her speeches, in her law review writings, and in her judicial opinions.
We fully expect Judge Sotomayor to attempt to explain away her record by repeating the White House’s talking points about her newfound commitment to the rule of law and judicial restraint. It would not surprise us if President Obama’s nominee suddenly testifies on the record with words similar to those used by Chief Justice Roberts and Justice Alito, two nominees President Obama voted against on the basis of judicial philosophy. Senators must see through this double-talk.
Senators and the American public should recognize such a false claim of judicial humility as part of a design to ensure enough votes for confirmation, because the White House has coached her to testify in this manner to appeal to the majority of Americans who believe in judicial restraint and applying the Constitution and Bill of Rights equally to all, as they are written. Nothing that Judge Sotomayor says during one week of hearings could undo years of speeches, writings, and judicial opinions proving that she would continue, in a lifetime appointment to the unreviewable Supreme Court, to undermine judicial restraint or of constitutionally limited government.