Michael Gaynor
Stop Obama and Sotomayor from rewriting instead of respecting law
By Michael Gaynor
May 4, 2009

The winning strategy is making the truth about Obama, ACORN and The New York Times generally known.

The truth is that (1) President Obama is NOT the moderate that he appeared to many to be as the Democrat nominee, (2) he cunningly concealed the extent of his relationship with ACORN and (3) he flatly lied about it during the last presidential debate.

In order to stop President Obama from putting radicals on the bench, it is essential that the American people learn that then candidate Obama fooled them (with the help of the liberal media establishment).

If not, then the seemingly calm, non-threatening candidate who cleverly claimed to have become a Christian who supports traditional marriage and then threw the man who supposedly brought him to Christ under the bus after saying that would be like doing so to his white grandmother and the black community will put such secular extremist judicial activists as Justice Sonia Sotomayor on the United States Supreme Court and the other federal courts. to remake America much more in accordance with the views of Karl Marx, the father of Communism, than Gary Marx, the Executive Director of the Judicial Confirmation Network.

The Judicial Confirmation Network (www.judicialnetwork.com) is all about upholding the law.

The "About Us" part of the website explains:

"The Judicial Confirmation Network is an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States. In addition, JCN works to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.

"We believe that the qualifications desirable in a nominee include:

  • integrity

  • common sense

  • education and experience in the law; and

  • devotion to the Constitution.

"We believe that the proper role of a judge or justice is to interpret the law and the Constitution — not make up the law and deprive the people of the right to govern ourselves.

"We believe that a judge or a justice should not use the power of the court to impose his or her personal or political agenda on the people."

Tragically, President Obama is now the nominator of federal justices and, with the retirement of Justice David Souter, he will be nominating Justice Souter's success.

President Obama is promising a empathetic nominee who supports the rule of law, but that's as oxymoronic as "gay marriage."

Don't expect President Obama's first nominee to be a male, black or white.

President Obama doesn't need to nominate a black to improve or hold his near unanimous black support.

President Obama needs to nominate (1) a female, (2) a Hispanic and (3) a judicial activist, preferably one with a touching story.

Judge Sotomayor of the United States Court of Appeals for the Second Circuit fits the bill.


"Early life and family

"Of Puerto Rican descent, Sotomayor grew up in a housing project in the South Bronx, just a short walk from Yankee Stadium. She was diagnosed with diabetes at age 8. Her father, a tool-and-die worker with a third-grade education, died the following year. Her mother, a nurse, raised Sotomayor and her younger brother, who is now a doctor, on a modest salary. Sotomayor married while still a student at Princeton University in 1976, and divorced in 1983.

"Education and early legal career

"Sonia Sotomayor attended Cardinal Spellman High School in the Bronx. After graduating with an A.B. from Princeton University summa cum laude in 1976, Sotomayor obtained her J.D. from Yale Law School in 1979, where she was an editor of the Yale Law Journal. Sotomayor then served as an Assistant District Attorney under prominent New York County District Attorney Robert Morgenthau, prosecuting robberies, assaults, murders, police brutality, and child pornography cases. In 1984, she entered private practice, making partner at the commercial litigation firm of Pavia & Harcourt, where she specialized in intellectual property litigation."

For those wondering if President Obama could do worse that Justice Souter, the answer is yes. For example, Justice Souter voted with the 7 to 2 majority in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation. As a federal district court judge, Judge Sotomayor had issued summary judgment FOR THE DEFENDANTS.

Judge Sotomayor surely has the kind of "empathy" for which President Obama looks.

BUT Judge Sotomayor allows "empathy" instead of law to rule key rulings.

Last October, Edward Whelan, president of the Ethics & Public Policy Center, realistically warned that a President Obama might nominate Judge Sotomayor.

Mr. Whelan:

"In the hope or illusion that America's voters will soberly consider what is at stake in this presidential election, I continue my exploration of the sort of candidates that a President Obama can be expected to appoint to the Supreme Court....

"Highlighting the emphasis on diversity over quality in judicial selection, Justice Scalia has joked that 'the next nominee to the Court will be a female Protestant Hispanic.' Second Circuit judge Sonia Sotomayor fits at least two-thirds of the description. Plus, she's acquired a reputation as a very liberal judge. For these reasons, she's widely mentioned as a leading Supreme Court candidate in an Obama administration."

And now the time is very near.

Mr. Whelan explained why a group of firefighters (one Hispanic, the others white) would be among those not delighted with the elevation of Judge Sotomayor to the United States Supreme Court.

Mr. Whelan:

"A striking opinion this past June by highly regarded Second Circuit judge (and Clinton appointee) José Cabranes exposes some remarkable and disturbing shenanigans by Sotomayor. Cabranes's opinion, joined by five of his colleagues (including Chief Judge Jacobs), dissented from his court's narrow 7-6 denial of en banc rehearing in Ricci v. DeStefano....

"In Ricci, 19 white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. As Cabranes puts it, 'this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?'

"The district judge, Janet Bond Arterton, issued a 48-page summary-judgment order ruling against the firefighters. Summarizing Arterton's opinion, Cabranes clearly finds highly unusual that Arterton could grant summary judgment for the city officials notwithstanding her acknowledgement that the evidence was sufficient to enable a jury to find that the city officials 'were motivated by a concern that too many whites and not enough minorities would be promoted.' Further, Cabranes finds it remarkable that such a 'path-breaking opinion' was 'nevertheless unpublished.'

"On appeal, Cabranes's account indicates, the judicial effort to bury the firefighters' claims got worse. In a case in which the parties 'submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,' in which two amicus briefs were filed, and in which oral argument 'lasted over an hour (an unusually long argument in the practice of our Circuit),' the panel, consisting of Sotomayor and fellow Clinton appointees Rosemary Pooler and Robert Sack, 'affirmed the District Court's ruling in a summary order containing a single substantive paragraph' — which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about. Four months later, just three days before Cabranes issued his opinion — and after the panel evidently knew that it had evaded en banc review — 'the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court's opinion in the Westlaw and LexisNexis databases.' As Cabranes sums it up:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion 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.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

"Cabranes and his five colleagues clearly believe that Sotomayor and her panel colleagues acted as they did in order to bury the firefighters' claims and to prevent en banc and Supreme Court review of them. Cabranes's opinion expresses his 'hope that the Supreme Court will resolve the issues of great significance raised by this case' and his judgment that plaintiffs' claims are 'worthy of [Supreme Court] review.'

"Quite an indictment — by a fellow Clinton appointee, no less — of Sotomayor's unwillingness to give a fair shake to parties whose claims she evidently dislikes. Hardly the mark of a jurist worth serious consideration for the nation's highest court."

But that is exactly what President Obama is looking for in a Supreme Court nominee!

Note: The Supreme Court DID decide to review the case and its decision is pending.

Gary Marx is urging people to "stop Obama from forcing on America another judicial activist like Ruth Bader Ginsburg who will turn back the ban on partial birth abortion, force Americans to remove all reference to our religious heritage, and use foreign laws to interpret the US Constitution."

Note: Judge Sotomayor is even more extreme that former ACLU counsel Justice Ginsburg too. Justice Ginsburg wrote the majority decision in Tasini.

Mr. Marx stated that the Judicial Confirmation Network "is ready to make sure America gets the Supreme Court Justice we deserve.

  • A Justice that will interpret the law, not make it.

  • A Justice that will demonstrate judicial restraint, not judicial activism.

  • A Justice that will base decisions on the US Constitution, not foreign law."

That's exactly is needed!

But America won't get the Justices and judges it deserves without a sea change in confronting now President Obama in the courtroom of public opinion!

Senator McCain said that candidate Obama was a fine young man with many admirable qualities, but asked the voters to pick him as the candidate "older than dirt" "with more scars than Frankenstein."

NOT a winning strategy, Senator McCain.

The winning strategy is making the truth about Obama, ACORN and The New York Times generally known.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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