Thursday, July 16, 2009

Committee for Justice Blog

July 16, 2009

The NRA Comes Out Against Sotomayor

The National Rifle Association has issued a statement officially declaring its opposition to Judge Sotomayor's confirmation to the Supreme Court.

The statement can be read here.

This announcement is encouraging because of its potential to impact the votes of Democratic senators from red and swing states, who are especially wary of upsetting gun rights advocates in fear of the group's ability to thwart their hopes for reelection.

July 15, 2009

Poll: Plurality Oppose Confirming Sotomayor

A new Rasmussen poll shows that a plurality oppose the confirmation of Sotomayor: 43% are opposed to her confirmation while just 37% are in favor. It will be interesting to see whether opposition continues to grow as Sotomayor's poor performance continues on day 3.

Ed Morrissey rounds-up reviews of Sotomayor's performance so far and they aren't good, which provides anecdotal support for Rasmussen's polling.

Inherent Physiological Differences

Sotomayor’s explanation, in response to Sen. Cornyn, of her statement that “inherent physiological or cultural differences” may result in gender and ethnic/racial differences in judging has to be her worst performance this week. Most of her response completely evaded Cornyn’s question, and the remainder of her answer did nothing to assuage concern that she believes there are inherent physiological differences and “differences in logic and reasoning” in how women and minorities think.

Quote of the Day

It comes from liberal Georgetown law professor Michael Seidman.
"Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified."
Update: GOP staffers question the truthfulness of Sotomayor's testimony.
"After a night of studying Sotomayor's testimony, Republicans will have more questions about what they view as her misrepresentation of her record. GOP senators know that Democrats are committed to confirming Sotomayor, and, with a 12-to-7 advantage in the committee and 60 votes in the full Senate, they don't need any Republican support to get it done. But they are troubled by her answers, by her attempts to deny the clear meaning of her words from the past. And that could result in growing, rather than diminishing, Republican opposition. 'We heard a lot of things that were not factually buttoned down,' the senior GOP aide said. 'If that's because she and the White House think she has the votes and doesn't have to answer, then some Republicans are going to be troubled by that.'"

July 14, 2009

CFJ Ads Debut

Sen. Graham’s questioning about Sotomayor’s leadership role in the radical positions taken by the Puerto Rican Legal Defense & Education Fund serves as the perfect introduction for CFJ’s brand new TV ad, which discusses that role. CFJ’s new print ads address Sotomayor’s views on race and the Second Amendment. Our radio ads will be posted shortly. The ads will be aimed at the constituents of red and purple state Democrats.

TV ad:

Print ads:

PRLDEF: Sotomayor vs. the Facts

Sotomayor portrays herself as barely aware of the activities of the Puerto Rican Legal Defense & Education Fund during the 12 years that she served on its board. So let’s review her description and the New York Times’s description of her time on the board:
“[Sotomayor] played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights. The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.” – NY Times, May 28, 2009
“I served … in the following capacities: Member and Vice President, Board of Directors; Chairperson, Litigation and Education Committees for the Puerto Rican Legal Defense and Education Fund.” – Sotomayor’s Senate questionnaire

Abortion and Firearms as Civil Rights Issues

In responding to Sen. Graham, Sotomayor justifies PRLDEF taking a position on abortion – in fact, the radical position of equating the denial of federal funding for abortion with slavery – based on the argument that abortion is a civil rights issue. Someone should ask her if she agrees with today’s article by Ken Blackwell and Ken Klukowski explaining why Second Amendment rights are an important civil right, especially for minorities.

CFJ on Twitter

Thanks to my colleagues Christina Pesavento and Dylan Marck for summarizing my live blogging on Twitter, while adding their own insightful commentary.

Sotomayor on “Inherent Physiological” Differences of Minority Judges

Good cross examination by Sen. Kyl on Sotomayor’s theory of ethnicity-based judging. Maybe I missed something, but why haven’t any senators asked Sotomayor about the most shocking statements in her Berkeley speech, specifically:
“Whatever the reasons why [judges of color] 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 …” (emphasis added)
“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.” (emphasis added)

Even Senator Feingold

Wow, even Sen. Feingold is expressing concern about Sotomayor’s ruling that the Second Amendment doesn’t apply to Wisconsin and other states. When I said that Second Amendment concerns among red and purple states Democrats are the key to credibly challenging Sotomayor’s confirmation, it’s not Sen. Feingold I had in mind.

Note to Self

Note to self from Sonia Sotomayor: At every possible opportunity, repeat the line about policy being the job of the other branches. I don’t really believe it – see Duke University and my other speeches – but MSNBC will eat it up.

Where’s Her Empathy?

Sen. Grassley or the next Republican to question Sotomayor should draw a comparison between her property rights decision in Didden and the Supreme Court’s Ledbetter ruling, upholding a statute of limitations defense to Lilly Ledbetter’s pay discrimination claim. Democrats have repeatedly called the Ledbetter decision an outrage because of its narrow reading of the statute of limitations. Doesn’t the same logic apply to Sotomayor’s narrow use of the statute of limitations to throw out Mr. Didden’s claim that extortion is not what the Founders had in mind when they included “for public use” in the Fifth Amendment’s Takings Clause?

DiFi Dead Wrong

Sen. Feinstein just said that the Supreme Court has struck down dozens of federal statutes as beyond the reach of the Commerce Clause. I can only think of two, the Gun Free School Zones Act and the civil remedy provision of the Violence Against Women Act.

I got a kick out of Feinstein’s remark that the Court shouldn’t put any teeth in the limits on the scope of the Commerce Clause because it gets in the way of Congress doing its job of legislating. Call me naive but I thought Congress’s job was to legislate only within the bounds of the Constitution.

Also, it’s good to hear that Feinstein is bothered by all the calls her office is getting expressing concern that Sotomayor is a judicial activist. Sounds like us Sotomayor critics are having an impact.

Leahy: Why We Blocked Estrada

Sen. Leahy just admitted that Miguel Estrada, the man who might have been the High Court’s first Hispanic justice, was obstructed by Senate Democrats for two years to punish the Bush Administration for not releasing documents, despite the fact that, in Leahy’s words, the lack of release was “no fault of [Estrada’s].”

More on Sotomayor’s 2nd Amendment Theories

Sotomayor just explained in a very matter of fact manner that, of course, nunchucks can be banned under a rational basis test because they “can hurt somebody.” She then said her holding in Maloney was a “very narrow ruling.” She seems unaware that the “can hurt somebody” standard makes Maloney a very broad ruling, because except for toy guns, all firearms can hurt somebody.

Second Amendment

Re Sen. Hatch’s 2nd Amendment questions, Sotomayor’s 2009 Maloney opinion strongly implies that the rational basis test she would apply to state regulation of firearms is whether they are “designed primarily as a weapon.” In other words, Hatch is correct that, under Sotomayor’s reasoning, all state gun restrictions are lawful.

Burying Ricci

Another great point by Sessions: Sotomayor explains her troubling and cursory opinion in Ricci, the New Haven firefighters case, by saying it was the Supreme Court’s job to decide the issue at hand. But then why did she and her colleagues on the 2nd Circuit panel do everything they could to bury the opinion and insulate it from review?

Sotomayor’s Full Flowering

Sen. Sessions just noted that Judge Sotomayor’s race and ethnicity-based theory of judging will reach “full flower” on the Supreme Court. That’s an important point. Most of her controversial statements occurred in the dozen or so years that Sotomayor was being discussed as a potential Supreme Court nominee and thus, assumedly, was on her best behavior. Imagine what we’ll see when she’s no longer auditioning for a promotion.

I Didn’t Mean “Policy” When I Said “Policy”

Sotomayor just told Sen. Sessions that she meant “precedent” rather than “policy” when she told a Duke University crowd that the “the Court of appeals is where policy is made.” If so, why in her next sentence at Duke did she say “I know this is on tape and I should never say that”? Sotomayor’s strategy – or to be fair, the White House’s strategy – is to deny the plain meaning of all the controversial things she has said, no matter how implausible her explanation.

Not from the Heart

Much of the exchange between Sotomayor and Leahy, including discussion of the Second Amendment, sounds so wooden and awkward that I almost feel sorry for them. I don’t know if they practiced too much or too little, but it sure doesn’t sound like it’s coming from the heart – either Sotomayor’s or Leahy’s.

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