Friday, May 29, 2009

Sotomayor's Justice: By Law or the Will of Those in Power

By Newt Gingrich

Can you imagine if the President of the United States nominated a judge to the U.S. Supreme Court who said this:

My experience as a white man will make me a better judge than a Latina woman would be."

Or could you imagine if that same judge ruled from the bench to deny 18 African-American firefighters a promotion just because of their skin color?

That judge would be called a bigot – and in my judgment, rightly so! Would there be any doubt that he would be FORCED to WITHDRAW his nomination for the Supreme Court?


There are only two options for how we govern ourselves – by laws, or by the will of those in power. The rule of law represents objective, dispassionate knowable standards that are applied and enforced equally to all citizens regardless of their background.

The will of those in power represents subjective, fleeting standards that are never fully known by any and are applied purely to satisfy the wishes of a small, concentrated group in power.

True justice is blind. It does not consider one's religion, wealth, race or in this case sex, family origin and ethnicity. To do so would be unjust.

To put someone on our nation's highest court who believes these traits should be considered in cases before the court, would be wrong.

Judge Sonia Sotomayor has proven, by her own admission, that she is such a judge. Knowing this, President Obama should withdraw her nomination to the Supreme Court.

Consider what Judge Sotomayor said about how her being a Latina woman will affect her decisions as a judge:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

You read that right – Judge Sotomayor said that her experience as a person of a particular sex and ethnic background will make her a better judge than a person of another sex and a different ethnic background!

When did that view become acceptable?

If Civil War, suffrage, and Civil Rights are to mean anything, we cannot accept that conclusion. It is simply un-American. There is no room on the bench of the United States Supreme Court for this worldview.

The checks and balances between the three branches of government are designed to prevent any small faction of society from exerting undue influence over the rest of us. If President Obama will not withdraw his nomination, then the Senate has a duty to ensure that judges with who hold these beliefs are not confirmed to serve on the Supreme Court.

The United States is a nation of immigrants from many backgrounds and their contributions have made our country great but that was made possible because our nation was built upon a solid foundation of law and order. The rule of law should be non-negotiable. It cannot be subordinated to ethnic or racial biases. To do so would be to make our Constitution arbitrary and meaningless undermining the very foundations of our society.

The rule of law is a crucial safeguard for the preservation of freedom.

As our civic and public leaders from many backgrounds have proven, America should continue to stand as a land of equality of opportunity, NOT equality of outcomes. Cases brought before the U.S. Supreme Court should be judged on the merits of the arguments rigorously tested against the United States Constitution. They should NOT be judged based on the racial and ethnic preferences of the judges making the decision!

Unfortunately, that's exactly what we'll get if Sonia Sotomayor is confirmed to the Supreme Court – a judge who will interpret the law based on her ethnic background, rather than based on the LAW. In fact, she has gone even further to say, "Whether born from experience or inherent physiological or cultural differences... our gender and national origins may and will make a difference in our judging."

These are actual quotes from Judge Sotomayor, spoken at a symposium sponsored by the Berkeley La Raza Law Journal in October 2001. And as if that wasn't enough to prove her ethnic-based (and gender-based) bias on the bench, that's not all she said:

"I further accept that our experiences as women and people of color affect our decisions... enough people of color in enough cases, will make a difference in the process of judging."

Remember, this is the same woman who, when speaking at Duke Law School, made it clear that she believes it is a judge's role to "legislate from the bench": responding to a question on the pros and cons of different types of judicial clerkships, she stated that the court "is where policy is made!" She tried to correct her slip, by joking that "I know this is on tape and I should never say that, because we don't ‘make law,' I know, I know." But, she already made herself clear: She believes JUDGES MAKE LAW!

She is wrong. Lawmakers make law NOT judges.

Words mean things and her words give her away. No amount of explaining or spin can change what she truly believes and if she is confirmed she will bring those beliefs to the Supreme Court.

And that wasn't just one little "slip" – in a 1996 article she co-wrote for the Suffolk University Law Review, she said, "Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions."

It gets worse: According the American Bar Association, Sotomayor is a member of La Raza ("the Race"). The National Council of La Raza was the group that was willing to compromise our national security by promoting driver's licenses for illegal aliens, amnesty programs, and no immigration law enforcement by local and state police.

The U.S. Supreme Court is no place for these kinds of judicial philosophies – we need to STOP this nomination from going any further before it is too late!

Of course, no one believes that any judge can be 100% impartial and unbiased in every situation. Judges are human beings, and will occasionally allow their personal biases to cloud their attempts at impartiality.

But this is VERY different – this judge is making it CLEAR that she thinks she SHOULD be biased and partial, based on her ethnicity and gender!

As noted this week in
The Hill, "these statements raise concerns about whether Sotomayor, who was raised under modest circumstances in the Bronx, would serve as a neutral arbiter in a case pitting a wealthy white male against a less wealthy man or woman of color."

To understand the judicial temperament Judge Sotomayer would bring to the Supreme Court, just look at one of her most controversial decisions –
Ricci v. DeStefano. Sotomayor approved of the city of New Haven's racial quota system and its decision to deny 18 firefighters their earned promotions – based on their skin color. This even provoked her own colleague, Judge Jose Cabranes (a fellow Clinton appointee) to object to the issued opinion that contained "no reference whatsoever to the constitutional issues at the core of this case!"

When judges make decisions based not on the application of law but on their personal biases about an issue at hand, the independence and authority of the judiciary is compromised.

Concerns about Sotomayor's activist view of the law grew so great that, despite the fact that President George H.W. Bush appointed her to the district court in 1991, 29 United States Senators voted against her nomination to the 2nd Circuit Court of Appeals in 1998.

THIS time... she shouldn't even get a vote, and should be withdrawn from consideration. It's just not right – every American should expect that their sons and daughters from every background can rise by applying the work ethic under equal protection under the law.

Your background should NEVER impact the application of law under the U.S. Constitution. It should not be a consideration by the judge or an expected consideration by the judged. Decisions made by the highest court in the land should be made on the basis of what is right and wrong – not who is right and who is wrong!

When politicians, judges, or law enforcement officials choose to exercise their own judgment in lieu of what the citizens have decided in a Representative Republic, the very idea of self-government is eroded.

We must not be blinded by the allure of "good intentions". We cannot defend our liberties by ignoring the system that allows for the protection of those liberties in the first place. The rule of law is the means by which a free people protect their liberty in a society of equals.

Barack Obama has made a poor choice by sending Sonia Sotomayor's nomination to the U.S. Senate. If he does not correct his mistake, American who care about justice, must take action -- let the Senate know that you OPPOSE this nomination. And we've got a GREAT way to do that!