Posted on 05/27/2009 7:06:32 PM PDT by neverdem
Why libertariansand everyone who believes in limited governmentshould worry about Barack Obama's Supreme Court nominee
President Barack Obama's announcement that he wants federal appeals court Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter comes as something less than a shock. For months, Sotomayor's name has topped most lists of potential candidates. With her compelling personal story, which stretches from a Bronx, New York housing project to Yale Law School to the federal Second Circuit Court of Appeals, Sotomayor's likely appointment as the Court's first Hispanic justice nicely complements Obama's own "only in America" narrative.
But when it comes to her judicial philosophy, there are some real causes for concern. In particular, on the hot-button issues of affirmative action and Second Amendment rights, her record suggests a decidedly illiberal vision of constitutional law.
Consider affirmative action. Last month, the Supreme Court heard oral arguments in the case of Ricci v. Destefano, which centered on charges of reverse discrimination at the New Haven, Connecticut fire department. In 2003 the department administered a test to fill 15 captain and lieutenant vacancies, but when the results came in, no African Americans made the cut (14 whites and one Hispanic earned the top scores). In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work.
Ricci's suit was initially thrown out at the district court level, prompting an appeal to the Second Circuit. At that point Sotomayor joined in an unsigned opinion embracing the district court's analysis without offering any analysis of its own. This prompted fellow Second Circuit Judge Jose Cabranes—a liberal Democrat appointed by President Bill Clinton—to issue a stern rebuke. "The opinion contains no reference whatsoever to the constitutional claims at the core of this case," Cabranes wrote. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."
It's an important point. Ricci gets at the very heart of the debate over whether the Constitution should be interpreted as a colorblind document. As the liberal legal commenter Emily Bazelon noted at Slate, "If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed." Given that the Court is likely to side with Ricci and his fellow plaintiffs, Sotomayor's silent endorsement of New Haven's reverse discrimination is certain to come back to haunt her during her confirmation hearings.
Equally troubling is Sotomayor's record on the Second Amendment. This past January, the Second Circuit issued its opinion in Maloney v. Cuomo, which Sotomayor joined, ruling that the Second Amendment does not apply against state and local governments. At issue was a New York ban on various weapons, including nunchucks. After last year's District of Columbia v. Heller, which struck down DC's handgun ban, attention turned to whether state and local gun control laws might violate the Second Amendment as well.
"It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right." But contrast that with the Ninth Circuit's decision last month in Nordyke v. King, which reached a very different conclusion, one that matches the Second Amendment's text, original meaning, and history:
We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition." Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the "true palladium of liberty." Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
This split between the two circuits means that the Supreme Court is almost certain to take up the question in the near future. What role might soon-to-be Justice Sotomayor play? As gun rights scholar and Independence Institute Research Director Dave Kopel told me via email, Sotomayor's opinions "demonstrate a profound hostility to Second Amendment rights. If we follow Senator Obama's principle that Senators should vote against judges whose views on legal issues are harmful, then it is hard to see how someone who supports Second Amendment rights could vote to confirm Sonia Sotomayor."
As a respected jurist with an impressive legal resume, Sotomayor appears just as qualified to sit on the Supreme Court as any recent nominee. But from the standpoint of individual liberty and limited constitutional government, there are significant reasons to be wary of her nomination.
Damon W. Root is a Reason associate editor.
If the one from her circuit comes before the SC she should recuse herself and have no say in it further. I don’t look for that to happen. Agendas take precedence over correct action.
“We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”
This may be beside the point, but I’ve never understood the incorporation principle. What does the due process clause of the 14th amendment have to do with the specific enumerations of the Bill of Rights? Nothing. Due process is all about PROCESS. Free speech, gun rights, etc. are not procedural issues; they are substantive issues.
That being said, you don’t really need the incorporation principle to imagine that the protection of gun rights extends to the states. Unlike the provisions of the first amendment, the second amendment doesn’t specify that Congress should make no law, etc. All it says is that the right of the people to keep and bear arms shall not be infringed.
Since the Constitution, in addition to enumerating the powers of the federal government, also denies certain powers to state governments, we can perhaps assume that the second amendment named the infringment of gun rights as one of the powers denied to the states. Certainly, I don’t see anything in the second amendment that says it doesn’t apply to the states.
I would say that she is a perfect match for liberals, a terrible choice for conservatives and a mixed bag as far as the libertarians are concerned at least as far as the libertarian party goes.
Libertarian Party Platform:
Throw open the borders completely; only a rare individual (terrorist, disease carrier etc.) can be kept from freedom of movement through political borders.
Homosexuals; total freedom in the military, gay marriage, adoption, child custody and everything else.
Abortion; zero restrictions or impediments.
Pornography; no restraint, no restrictions.
Drugs; Meth, Heroin, Crack, anything new that science can come up with, zero restrictions.
Advertising drugs, prostitution, pornography; zero restrictions.
Military Strength; minimal capabilities.
Too chicken to commit by signing and had absolutely nothing to base the bigoted racist decision on.
"It is settled law," Sotomayor and the Second Circuit held,
Yep, just like Al Gors settled science and all scientists agree B.S.
This racist pinhead is going to be screeching to the commie MSM for decades. Perhaps she will be the poster-commie for why Americans should not vote for communist agenda democrats that will stick in memory for generations.
Hey, buddy, the debate - is over! /sarc
Colonel, USAFR
What if the NRA and GOA gives the Senators a call and tells them that they will be rated according to how they vote for gun grabbers?
Due Process has two parts: Substantive and Procedural. The idea is that without substance, procedure is moot. (WAY simplified, but you get the idea.)
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Thanks for the ping!
Maybe I am jaded, maybe I just don't understand how the Bronx is so different, but I just don't get what is so compelling about her life story. At all.
Because the Liberals expect nothing from people living in the projects. Because she grabbed the affirmative action ring and got out and actually got her ticket punched, well, that’s something to a political party that expects nothing.
That sounds about as compelling as mold in a shower stall.
ping
...Can’t speak for all, but this libertarian carries a mixed bag...
bump
“Due Process has two parts: Substantive and Procedural. The idea is that without substance, procedure is moot. (WAY simplified, but you get the idea.)”
I’m familiar with the concept, and along with Robert H. Bork, I think it’s absolute B.S. As intellectually phony as “The Protocols of the Elders of Zion”. Substance has nothing to do with process. Process is the only thing that matters; that’s why they call it “due process” instead of “due substance”.
The injection of substance into our 14th amendment protections is one of the premier avenues (along with the interstate commerce clause and the equal protection clause) through which our Constitution has been destroyed, in my opinion.
Oh, I should add I love John Hart Ely’s characterization of substantive due process as a contradiction in terms, like saying “green pastel redness”.
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