A Republican Strategy For An Activist Supreme Court Pick

President Obama's nomination to the Supreme Court of Sonya Sotomayer of the 2nd Circuit Court of Appeals presents the Republicans with a real opportunity to get out its message, though they likely have no chance of stopping her nomination. Sotomayer is a doctrinaire left-wing judcial activist of passable, though hardly superior, legal reasoning skills. She has displayed blatant reverse racism for which she needs to be called to account. But by far the most important, she has authored or been a part of several very questionable opinions on 2nd Amendment rights, property rights and reverse discrimination. And therein lies the Republican opportunity.

Sotomayer's personal history is compelling. Much like the personal history of Clarence Thomas, her's is a success story to be celebrated. A child from a poor family who lost her father at nine, she has worked her way far up the ladder to reach where she is today.

In choosing Sotomayer, Obama articulated an undefined "empathy" standard for Supreme Court Justices that seems like an invitation for Justices to ignore law and precedent in order to arrive at a decision that supports, as Richard Epstein points out, favored litigants. Indeed, Obama doubled down on that theme in his introduction of Sotomayer yesterday when he, with all the accuracy that he earlier brought to a quote of Churchill, misquoted the late Chief Justice Oliver Wendell Holmes for the proposition that Holmes supported this type of judicial activism. Roger Clegg points out the falsity of Obama's quote.

Regardless, Obama may well have found such an activist in Sonya Sotomayer. She is, according to NRO's Michael Greve:

. . . among the most aggressively pro-plaintiff, anti-business appellate judges in the country. Her rulings in class actions, preemption cases, and other commercial matters are of a piece with her contempt for property rights (noted by Richard Epstein) and her anti-employer bias in discrimination cases (a matter of notoriety).

Other criticisms of her, consolidated at TNR, are that she is "not that smart and kind of a bully on the bench." Those comments seem borne out by the research done at Powerline. This is not necessarilly a bad thing from the right's perspective. Better to appoint a weak liberal whose ability to sway other members of the Court will be limited than an intellectual powerhouse and leader.

Other than her written decisions, at least two quotes from Sotomayer have surfaced that seemingly raise questions about her qualification for the Supreme Court. The first was a video of her stating in 2005 that "court of appeals is where policy is made." Many on the right are seizing on this as proof of her judicial activism. It is not. Indeed, what she said is nothing more or less than the truth. Cases that get to the appelate division are there on questions of law that are often simply unclear. Thus it falls to the appelate courts to flush out the law. Even if they do this in the best traditions of Scalia by looking solely to original intent and plain meaning, their decisions are still "making policy."

Sotomayor's second quote is much more problematic - and indeed, if uttered by a conservative or a white male, would end the nomination process today. It is both a clear affirmation of judicial activism and the casual reverse racism of the far left - racism that should have no place in our government:

Sotomayor stated in a 2002 speech at Berkeley 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 at Berkeley, "'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.'

Such a quote should disqualify her. It won't. The truth is that reverse racism is wholly accepted by the far left and the MSM. Indeed, it is why we have Obama today - a man whose own occasional forays into reverse racism coupled with his long association with the despicable Rev. Wright should have disqualified him from standing for dog catcher, let alone POTUS. Regardless, Sotomayer's statement here should be one of the things highlighted by the right in the upcoming hearings.

All of this said, the goal in the hearings should be to establish that Sotomayor is in fact a highly activist judge and explain precisely what that means for our country. In particular, Republicans would highlight four cases on which Sotomayor has written.

The first case would be the reverse discrimination lawsuit, Ricci v. DeStefano, currently at the Supreme Court. Sotomayor was derelict in her duty to decide the case and, indeed, came down without any substantive comment on the side of the defendant charged with reverse racism. You can read a good description of the case and the controversy over Sotomayor's opinion here.

The second case would be her role in the Didden v. Village of Port Chester, discussed in detail at the Volokh Conspiracy. It is a horrendous decision that finishes off the job of scrubbing from the Constitution the 5th Amendment's "public use" clause prohibiting government from taking private property and giving it to another private party for a non-public use.

The third case would be the recent opinion in Maloney v. Cuomo where Sotomayor joins in arguing that the Second Amendment does not grant a "fundamental right" to keep and bear arms. More on this at the Volokh Conspiracy. In other words, she believes the Second Amendment right to keep and bear arms does not apply to the states. This would neuter the Second Amendment decision in Heller. And indeed, I forecast months ago that Obama could well appoint a Supreme Court nominee who would take this position.

And the last case would be Merrill Lynch v. Dabit, where Sotomayor simply ignored federal law of preemption to allow a state secuities lawsuit to go forward. It was very plaintiff friendly decision and also ridiculously wrong - to the point that the Supreme Court reversed it 8-0.

I would suggest that those four cases and the propositions Sotomayor's decisions stand for should form almost the sole focus for questioning her. Those are wholly legitimate areas to bring up - but I doubt if the left will have any of it. As Jonah Goldberg notes, the left is primed to play the race and gender cards to any Republican challenges to Sotomayer, irrespective of the nature of the challenges. What a surprise eh. As I've written before here, redefining legitimate debate into a racial or gender has been the left's game plan since they hijacked the civil rights movement in the 1960's and turned it into a marxian vehicle that sought not equality, but entrenchment of victims groups and identity politics.

The hypocrisy of the left is unbounded. For example, the WSJ has pointed to a memo to Dick Durbin from left wing groups asking him to put off Bush federal court nominee Miguel Estrada in 2001 - because he was Latino. As the WSJ quotes:

November 7, 2001/To: Senator Durbin

"The groups singled out three--Jeffrey Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline [sic] Kuhl (9th Circuit)--as a potential nominee for a contentious hearing early next year, with a [sic] eye to voting him or her down in Committee. They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

The practioners of identity politics are on the left. And they have made an industry of projecting their sins onto the right.

As to calls by the left to pass on Sotomayer with no real challenge, this again is a ridiculous call by the left. As Richard Garnett writes at the NRO:

A few minutes ago, I did a radio-show piece with Slate’s Dahlia Lithwick, who voiced her hope that this confirmation process would be dignified and merits-based, and not involve the “dumpster-diving” and smear-tactics to which, she asserted, extremists on the left and the right have resorted in the past, etc.

Look for expressions of regret, and calls for seriousness, civility, and the like, in the days to come from President Obama’s surrogates in the press and in the activist groups. You will have to look harder, though, for journalists to observe, and these surrogates to admit, that (a) the “let’s use Supreme Court nominations as occasions to smear good people” tactic is one that the Democrats — but not, in fact, the Republicans — have practiced enthusiastically; (b) that Justices Breyer and Ginsburg were easily confirmed, with substantial Republican support, not because they were “moderate,” but because the Republicans voted in accord with the “President gets his (qualified) nominees” standard; and (c) that dozens of Democratic senators, including the president, abandoned this standard (to the extent they ever respected it) and disgraced themselves by voting against Justice Alito and Chief Justice Roberts, easily among the most impressive nominees in history.

Bottom line, Republicans need to be very respectful, but they do need to repeatedly highlight Sotomayor's activism and her disdain for property rights, gun rights, and equal protection. They need to hammer those issues home. They will not stop Sotomayor from being approved by the Democratically controlled Senate. But they can educate the public on just what it is the public is getting. Who knows, perhaps the public may feel a bit less empathetic when they are done.