Michael Gaynor
Stand up for constitutional fidelity, stop Judge Sotomayor
By Michael Gaynor
May 27, 2009

The only issue is whether Judge Sotomayor would interpret the law and the Constitution instead of making up the law and depriving "We the people" of the right to govern ourselves. President Obama wanted a Hispanic woman of humble origin with judicial experience whom the Far Left will rally behind and who will read the Far Left agenda into the law.

Do you believe that judges should respect the Biblical prescription of impartial justice or rely on the Obama/ACORN/New York Times preference for empathy in making judicial decisions?

That question took center stage when President Obama's nominated Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court.

Naturally, The New York Times (which killed the ACORN/Obama campaign expose before the last election) is enthusiastically backing President Obama's call for quick confirmation, even warning Republicans that opposing confirmation would be very bad for them.

Yes, there are those naive souls who actually believe that The New York Times puts the best interests of the United States first.

But how many really believe that The New York Times gives sincere advice as to what's best for the Republican Party?

President Obama's nomination of Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court is not at all surprising. President Obama wanted a Hispanic woman of humble origin with judicial experience whom the Far Left will rally behind and who will read the Far Left agenda into the law.

Equally unsurprisingly, The New York Times wants Judge Sotomayor's nomination rubberstamped instead of scrutinized and I don't.

As I wrote in a 2005 article:

"In 1997 I joined with Emily Bass to form the law firm of Gaynor & Bass. Gaynor & Bass subsequently prevailed in both the United States Court of Appeals for the Second Circuit and the United States Supreme Court in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The United States Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation. Ms. Bass, as a solo practitioner, had formulated, filed and pursued the case on behalf of a group of freelance writers, and the United States District Court had granted the defendants' motion for summary judgment on liability. Thereafter, the New York Times successfully urged that the district court judge who ruled for it be elevated to the Second Circuit. That judge had permitted the New York Times to make free electronic use of freelancer work without permission, for its own substantial economic benefit. As usual, the New York Times claimed to be serving the public interest and warned of dire consequences for the American way of life if it did not have its way. But it lost in the Second Circuit. And then, in its United States Supreme Court brief, castigated the Second Circuit for its 'Luddite-like approach' in ruling for the freelancers and passionately proclaimed that '[t]he Second Circuit's decision will have devastating real world effects if it is not reversed.' In fact, the Second Circuit decision was affirmed, as it should have been as a matter of law, without the consequences that the New York Times self-servingly predicted in the hope of excusing its blatant copyright violations at the expense of freelancers."

President Obama wants "empathetic" judges, so let's see where Judge Sotomayor's empathy seems to have taken her.

In the firefighters case (Ricci)in which the United States Supreme Court now is reviewing Judge Sotomayor's legal work, the victims of racial discrimination were not only whites: a Hispanic firefighter was among those discriminated against after no black firefighters passed a test for promotion.

In the freelancers case (Tasini)in which "the big guys" used freelancer work without permission, much less compensation), Judge Sotomayor sided with "the big guys" instead of "the little guys." it should be no surprise that The New York Times wants her nomination rubberstamped!

New York Times chief political reporter Adam Nagourney, in the Times "Caucus" blog:

"President Obama's nomination of Sonia Sotomayor to the Supreme Court has put the Republican Party in a bind, as it weighs the cost of aggressively opposing Mr. Obama's attempt to put the first Hispanic on the high court at a time when the party has struggled with sharp setbacks in its effort to appeal to Hispanic voters.

"The Republican Party has been embroiled in a public argument over whether to tend to the ideological interests of its conservative base or to expand its appeal to a wider variety of voters in order to regain its strength following the defeats of 2008. Many conservatives came out fiercely against Ms. Sotomayor as soon her name was announced, denouncing her as liberal and promising Mr. Obama a tough nomination fight.'


"But some Republicans warned that the image of Republicans throwing a roadblock before an historic nomination could prove politically devastating. Republicans saw a dip in Hispanic support in 2008, after eight years in which former President George. W. Bush and his political aides had made a concerted effort to increase the Republican appeal to Hispanics, the nation's fastest-growing group of voters.

"'If Republicans make a big deal of opposing Sotomayor, we will be hurling ourselves off a cliff,' said Mark McKinnon, a senior adviser to Mr. Bush and a long-time advocate of expanding the party's appeal. 'Death will not be assured. But major injury will be.'"

Mr. Nagourney also reported that "Republicans could doom themselves to long-term minority status if they are perceived as preventing Ms. Sotomayor from becoming a judge. He argued that the party could not even be seen as threatening a filibuster."

And The New York Times and Mr. Nagourney favor a Republican resurgence?

Of course not!

When it comes to what's best for the United States and the Republican Party, I'll side with Manuel Miranda, Chairman of the Third Branch Conference, not The New York Times.

Mr. Miranda:

"The President has nominated a highly-credentialed judge with an inspiring life story. Regrettably he also tainted the nomination from its start by suggesting that his nominee would judge based on personal feelings and background, or be biased with empathy for particular classes of litigants. Judge Sotomayor now has a much higher hurdle to climb than any nominee before her. The President's taint combined with her aggressive record present an ample stage for a great debate in the Senate."

"The fact that Sonia Sotomayor is a Latina should not give Repubican senators any pause. There is no larger demographic group in America today that could better understand what it means to have courts and judges who favor one side over another without an argument being made, than do Hispanics. It is among the reasons why we came here. This nomination offers a great opportunity to explain to Hispanic Americans why the Constitution must be defended against a judge who would rewrite it according to personal biases and politics."

Mr. Miranda is Hispanic, so he will have to be dismissed by Sotomayorists as sexist.

Wendy E. Long, general counsel to the Judicial Confirmation Network:

"President Obama has threatened to nominate liberal judicial activists who will indulge their left-wing policy preferences instead of neutrally applying the law. In selecting Judge Sonia Sotomayor as his Supreme Court nominee, President Obama has carried out his threat.

"Judge Sotomayor will allow her feelings and personal politics to stand in the way of basic fairness. In a recent case, Ricci v. DeStefano, Sotomayor sided with a city that used racially discriminatory practices to deny promotions to firefighters. The percuriam opinion Sotomayor joined went so far out of its way to bury the firefighters' important claims of unfair treatment that her colleague, Judge Jose Cabranes, a Clinton appointee, chastised her.

"According to Judge Cabranes, Sotomayor's opinion 'contains no reference whatsoever to the constitutional claims at he core of this case' and its 'perfunctory disposition rests uneasily with the weighty issues presented by this appeal.' Even the liberal Washington Post columnist Richard Cohen expressed disappointment with the case, stating, 'Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of race.'

"Sotomayor's terrible decision in Ricci is under review by the Supreme Court and an opinion is expected by the end of June.

"Sotomayor readily admits that she applies her feelings and personal politics when deciding cases. In a 2002 speech at Berkeley, she stated that she believes it is appropriate for a judge to consider their 'experiences as women and people of color,' which she believes should 'affect our decisions.' She went on to say in that same speech 'I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life.' She reiterated her commitment to that lawless judicial philosophy at Duke Law School in 2005 when she stated that the 'Court of Appeals is where policy is made.'

"The poor quality of Sotomayor's decisions is reflected in her terrible record of reversals by the Supreme Court.

"Sotomayor is a favorite of far left special interest groups. In addition to her record as a hard left judicial activist, Sotomayor has been recommended for the Supreme Court by Nan Aron of the very liberal Alliance for Justice, who stated in a 2004 memo to the Senate Judiciary Committee that Sotomayor had 'been through an initial vetting and fit into the criteria that we believe should be the standard for any Supreme Court justice.'

"The White House is sure to argue that Sotomayor is a 'bipartisan pick' because Bush 41 appointed her to the district court: President George H.W. Bush nominated Sotomayor in 1991 only because the New York senators had forced on the White House a deal that enabled Senator Moynihan to name one of every four district court nominees in New York. In 1998, 29 Republican senators voted against President Clinton's nomination of Sotomayor to the Second Circuit."

Mrs. Long is female, so those Sotomayorists will have to dismiss all of her points as insignificant because she's not Hispanic.

BUT, together, Mr. Miranda and Mrs. Long are Hispanic AND female! So their points should not be blithely dismissed as anti-Hispanic sexism or pathetically parried with a statement that Judge Sotomayor had overcome barriers, accomplished much and is a diabetic Nancy Drew and New York Yankee fan.

The only issue is whether Judge Sotomayor would interpret the law and the Constitution instead of making up the law and depriving "We the people" of the right to govern ourselves.

Judge Sotomayor's record reveals that she is likely to use judicial power to impose her political agenda.

Judge Sotomayor: NOT suitable for SCOTUS.

© 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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