Michael Gaynor
Judge Sotomayor's lucky Ann Coulter isn't on the Senate Judiciary Committee
By Michael Gaynor
July 15, 2009

Judge Sotomayor's comedy routine about judges making policy but not admitting it refers to judicial activism disguised as judicial determination, not appellate courts doing their assigned task of deciding legal issues (hardly the stuff of comedy).

ACORN succeeded in making Al Franken the 60th Democrat United States Senator and, with La Raza, is looking forward to celebrating the confirmation of Judge Sonia Sotomayor as a United States Supreme Court Justice.

ACORN and Judge Sotomayor are very fortunate that Franken is the newest United States Senator.

America would be much better served if Ann Coulter had taken that Senate seat and was questioning Judge Sotomayor in the televised confirmation hearing.

Judge Sotomayor is a fundamentally flawed nominee. But she would be the third female and the first Latina or Latino to become a United States Supreme Court Justice and those factors are working for her.

Still, the second day of the Sotomayor confirmation hearing revealed that she in not fit for confirmation.

BUT: she is still likely to be confirmed, because there are 60 Democrat United States Senators and she is not being confronted strongly enough.

Think of the confirmation process as a boxing match. Judge Sotomayor will win unless she is knocked out. She has a glass jaw, but Republican Senators are just throwing jabs and trying to impress the crowd with their footwork as time is running out.

Unfortunately, none of the Republican United States Senators who interrogated Judge Sotomayor today seems to be temperamentally suited to knocking out the nominee poised to become the United States Supreme Court's first Latina.

Take South Carolina's Lindsay Graham. Senator Graham's primary interest appeared to be to lament that if he had claimed that a white male would make better decisions than females or blacks or Latinos, he would have become political toast, but Judge Sotomayor will be confirmed even though she has repeatedly stated that she hopes that a wise Latina would make better decisions that white males.

Giving Judge Sotomayor a pass is wrong, but Senator Graham appears ready to do just that.

Ann Coulter would not deal with Judge Sotomayor that way.

Ms. Coulter would not flinch from confronting Judge Sotomayor with her own words, in context, or gullibly accept Judge Sotomayor's made-for-television persona as a vulnerable, soft-spoken, deferential proponent of judicial restraint.

Post at www.anncoulter.com quoting Judge Sotomayor: "Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address."

Putting a person with that mindset on the United States Supreme Court, the highest court, is NOT sensible, because, unlike federal district court judges and federal appellate judges, United States Supreme Court Justices are not subject to review by higher authority.

On July 1, 2009, Ms. Coulter entertainingly exposed the extremism of Judge Sotomayor in the New Haven firefighters case.

Ms. Coulter:

"With the Supreme Court's decision in Ricci v. DeStefano this week, we can now report that Sonia Sotomayor is even crazier than Ruth Bader Ginsburg.

"To recap the famous Ricci case, in 2003, the city of New Haven threw out the results of a firefighters' test — which had been expressly designed to be race-neutral — because only whites and Hispanics scored high enough to receive immediate promotions, whereas blacks who took the test did well enough only to be eligible for promotions down the line.

"Inasmuch as the high-scoring white and Hispanic firemen were denied promotions solely because of their race, they sued the city for race discrimination.

"Obama's Justice-designate Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of 'talk to the hand.' She upheld the city's race discrimination against white and Hispanic firemen on the grounds that the test had a 'disparate impact' on blacks, meaning that it failed to promote some magical percentage of blacks.

"This strict quota regime was dressed up by the city — and by Sotomayor's opinion — as a reasonable reaction to the threat of lawsuits by blacks who were not promoted.

"That's a complicated way of saying: Racial quotas are peachy."

They aren't, of course.

In addition to lamenting the disparate impact of abortion on black babies not legally significant to Justice Ginsburg, Ms. Coulter emphasized that not one United States Supreme Court Justice, not even enthusiastic Sotomayor supporter Justice Ginsburg, approved the standard that Judge Sotomayor had used in summarily dismissing the firefighters' appeal.

Ms. Coulter: "...all nine justices rejected Sotomayor's holding that different test results alone give the government a green light to engage in race discrimination. Even Justice Ginsburg's opinion for the dissent clearly stated that 'an employer could not cast aside a selection method based on a statistical disparity alone."

The liberal media establishment doesn't find THAT newsworthy, because it's interested in portraying Judge Sotomayor as well within the judicial "mainstream" instead of "an outlier."

Even more troubling, Judge Sotomayor seems to be a liar.

A videotape of Judge Sotomayor at Duke University shows her not only stating that appellate judges make policy, but joking about it.

During the second day of her hearing, Judge Sotomayor tried to explain that away but no Senator called her on it.

In a Bench Memo posted at National Review Online contrasting Judge Sotomayor's "rhetoric today" with "her record of the last three decades," Judicial Confirmation Counsel Wendy Long noted: "She tried to explain away her Duke Law school statements that 'appellate courts make policy' by saying: Oh, no, Senator; courts don't make the same kind of policy that you make in the legislature. What I meant was, district courts find facts, and appellate courts then apply the law."

As sportscaster Warner Wolf says, "Let's go to the videotape."

Judge Sotomayor's comedy routine about judges making policy but not admitting it refers to judicial activism disguised as judicial determination, not appellate courts doing their assigned task of deciding legal issues (hardly the stuff of comedy).

Mrs. Long diagnosed the problem presented by Judge Sotomayor:

"Judge Sotomayor — obviously at the direction of the White House — has decided to follow the path of not just stonewalling, but of flatly contradicting what is in her record....

"What she is doing this morning is making statements that are utterly irreconcilable with that record."

We need United States Senators willing to take on Judge Sotomayor instead of dance with her.

Alas, Ms. Coulter is not a member of the Senate Judiciary Committee.

Mrs. Long; "[Judge Sotomayor] has tried to erase her long history of statements that a judge's personal background and views can be brought to bear on a case and indeed used to make 'law' and affect 'the facts that I choose to see' by now claiming that all she meant was her background and views just help her to see all sides of a case impartially. If that is what she really meant all these years, she could have said it. It is not what she said."

It's not, but, tragically, Mrs. Long is not a member of that committee either.

All United States Senators take an oath to preserve, protect and defend the United States Constitution.

At least some of them better accept immediately that means exposing Judge Sotomayor, not excusing her.

© 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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