ConfirmThem

I cannot see much gained from picking a fight over this nomination. She clearly has sufficient judical experience. She clearly does not just make-up law from thin air, but looks at what is written and was prior courts have decided. She is, frankly, better than I expected.

Frankly, I don't see her significantly changing the balance of the Court, nor do I see her as clearly unqualified. Elections have consequences, so a liberal judge is to be expected. She, at this time, does not appear to be so problematic as to justify a filibuster. This is especially true after the whole nuclear option discussion we had a couple years ago. Frankly, unless she messes up, I don't see why not to confirm her. How does one know that the replacement would not be worse?

keep your powder dry. Keep the main thing the main thing. Rush's (somewhat) counter view to follow.

Tuesday, May 26, 2009
The Crucial Need For Focus
Posted by: Hugh Hewitt at 9:06 AM

The summer should be opening with an annual slow-down in D.C., but instead the already rushed pace of events is accelerating with the nomination of Judge Sotomayer to SCOTUS, the North Korean nuclear and missile tests, the continuing debate over Gitmo, the end game for the old GM and of course the rush to radically rewrite the rules of American medicine.

So many major debates are underway or about to open that conservatives have to very carefully manage their efforts so as not to get rolled in every single instance.

The field on which they are most likely to find allies across the aisle is in the battle to stop a "government option" for health care, which if passed will swallow the entire system of private insurance and lead to "single payer" with breathtaking speed.

The debates in which the public is most likely to side with them is on the necessity of maintaining Gitmo as an alternative to moving terrorists to the U.S., and on the need for more, not less, missile defense.

My column yesterday on the dangers of moving the Gitmo terrorists into the U.S. prison system states the obvious, and even senior Democrats have begun to desert President Obama on this issue. The GOP leadership will almost certainly keep up the pressure here.

They also need to underscore that President Obama's proposed defense budget undercuts missile defense even as the crazy dictator of North Korea demonstrates an increasing ability to both detonate nuclear devices and launch longer ranger missiles. The Obama defense budget proposes to slash $1.2 billion from missile defense spending at a time or record spending and sharply increasing threats from rogue states with nuclear ambitions. The Administration says it is refocusing the missile defense effort on states like North Korea, but a 15% cut in overall spending on the technology cannot be covered over with a press release. Surely Joe Lieberman isn't the only Democrat who knows a build-down in missile defense is crazy? The GOP should push to restore full funding for missile defense.

On health care, "history and good sense contradict the president," writes Philip Klein in today's Politico, and Klein is of course right. Voters know we cannot afford to hemorrhage trillions more on single-payer, Canadian-style health care which would lower the quality of care even as it contributes to the bankruptcy of the country. Conservatives have the high ground here and need only to begin and sustain the debate as soon as possible.

All of which is a long way of saying that the GOP's priorities should be national security --Gitmo and missile defense-- and the health care debate, not an unprincipled effort to bleed Judge Sotomayer. Her hearings will provide an excellent opportunity for Republican members of the Judiciary Committee to remind the public of the principles of originalism and of the limited nature of the judicial power, but voices on the right already calling for an all-out effort to mobilize opposition to the nominee without even a week of reading or a day of hearings are diverting crucial attention from debates which are clear, urgent, and already upon us.

go to the mat on this nomination to show President Obama's views. [nb--be sure to check out the last paragraph for specifics in how SCOTUS has reversed some of her rulings.]

GOP Must Go to Mat on Sotomayor to Tell Real Story of Barack Obama
May 26, 2009

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*This is a rough transcript and may not be in its final form.
BEGIN TRANSCRIPT

RUSH: Maybe I should say here, ladies and gentlemen, for the first day, for the first time in my life I'm proud to be an American. No, no, no, just kidding. But Sonia Sotomayor is a great story. It's a great story. Greetings to you music lovers, thrill-seekers, and conversationalists all across the fruited plain. Time for broadcast excellence hosted by me, Rush Limbaugh, the former titular head of the Republican Party. Telephone number, 800-282-2882 . The e-mail address, ElRushbo@eibnet.com.

Just moments ago, prior to the start of today's program, my trusted aide-de-camp and chief of staff, H.R. Carson, sends me a note saying that he had just gotten off the phone with the Associated Press. The Associated Press asked if they could roll tape on my comments regarding Sonia Sotomayor nominated to the Supreme Court today by President Obama. The guy on the phone from the AP said to H.R, "Look, I know that Rush passed the leadership baton the Republican Party to Secretary Powell, but Rush is still the most influential voice out there for Republicans." So H.R. said, "Should I grant them permission?" "Yeah, we can't stop 'em rolling tape on what I say, feel free."

Ladies and gentlemen, her story is very inspirational. The personal story of Sonia Sotomayor, where she came from and where she has now arrived, you can't deny that this is a tremendous story, very inspirational for practically everybody. But the thing I'd like to point out is that she accomplished all of this during the Reagan years. She accomplished all of this during the Bush years, both Bush presidential years, 12 years, and even the Clinton years. She accomplished all of this before President Obama, The Messiah, was elected president of the United States. Now, this morning Mr. Snerdley came to me breathlessly looking for guidance, as I'm sure many of you are, too. "Do you think we should go to the mat stopping Sotomayor? Do you think we ought to go to the wall to oppose her?" And I said, "Absolutely we should, once again an opportunity to draw the distinct contrast that exists today between conservatives and those in the Republican Party to President Obama."

I doubt that Sotomayor can be stopped. She should be. She is a horrible pick. She is the antithesis of a judge, by her own admission and in her own words. She has been overturned 80% by the Supreme Court. She may as well be on the Ninth Circus Court of Appeals, given all the time she's overturned. She has been reprimanded by a truly strong Hispanic judge, Jose Cabranes. She has been rebuked in writing by Cabranes for opinions that she wrote that had no bearing on the constitutional issues before her in the case that was being decided. Details on that coming up. But here is why, even though she may not be able to be stopped, here is why Sonia Sotomayor needs to be opposed by the Republicans as far as they can take it, because the American people need to know who Barack Obama really is, and his choice of Sonia Sotomayor tells everybody, if we will tell the story of her, who he is.

He got up in his announcement and said everything about her that isn't true, that she's a great constitutionalist; that she doesn't use personal opinion; that she understands what her role is and the oath is of a Supreme Court justice. She has done just the opposite of that. She is a hack like he is a hack in the sense that the court is a place to be used to make policy, not to adjudicate cases, not to adjudicate constitutional law but to make policy. She's even admitted it. Grab sound bite number one. This is 2005 in Durham, North Carolina, at Duke, the School of Law there during a panel discussion about the court of appeals. This is what Judge Sonia Sotomayor had to say.

SOTOMAYOR: All of the legal defense funds out there, they're looking for people with Court of Appeals experience because it is -- Court of Appeals is where policy is made. And I know, and I know this is on tape, and I should never say that because we don't make law, I know. (laughing) Okay, I know. I know. I'm not promoting it and I'm not advocating it. I'm -- you know. (laughing)

RUSH: Well, there you have it. She makes light of it and makes jokes about what she determines her purpose to be. She is the embodiment of the criticism of a judge or a justice who is all wrong for the highest court in the land. So of course the Republican Party should go to the mat on this because in the process of doing so, the American people will find out more about Barack Obama and who he really is; what he really believes in. And her choice, this choice helps to tell the real story of Barack Obama. This is a debate worth having. She stands for policy making. Her defenders have said two things that are incompatible. I've been watching TV this morning and her defenders have said two things that are incompatible when you take them together. "No, she doesn't believe in policy making from the bench. Her words were taken out of context." You just heard her words. Listen to it again. Here's audio sound bite number one. We got liberal defenders on TV this morning saying, "No, no, no, she's been taken out of context there, she doesn't believe in policy making."

SOTOMAYOR: All of the legal defense funds out there, they're looking for people with Court of Appeals experience because it is -- Court of Appeals is where policy is made. And I know, and I know this is on tape, and I should never say that because we don't make law, I know. (laughing) Okay, I know. I know. I'm not promoting it and I'm not advocating it. I'm -- you know. (laughing)

RUSH: She's just telling her audience what they want to believe. I mean, the audience is laughing because she let the cat out of the bag, but they know nothing is going to come of it because she's just being honest. She's being hones, nothing out of context here whatsoever. So her liberal defenders on TV today have said two things that are incompatible when you take them together. They said that she's been taken out of context, she does not believe in policy making, and they're also saying that every justice in every decision is about policy making. I've watched it all this morning. The defenders of Sonia Sotomayor have come out all over the ballpark, from all over the place, and they're contradicting themselves. This is why this is actually a good choice. I mean, do I want her to fail? Yeah. Do I want her to fail to get on the court? Yes. She'd be a disaster on the court.

Do I still want Obama to fail as president? Yeah. AP, you getting this? He's gonna fail anyway, but the sooner the better here so that as little damage can be done to the country. Now, I also want to talk what I think the Republicans are going to do with this as opposed to what they should do, 'cause I think those are two entirely different things. There's a big source of controversy with Sonia Sotomayor and I don't know if it's going to be brought up. Somebody, I'm sure Jeff Sessions or somebody on our side, the Judiciary Committee, will bring it up, and one of the focal points is going to be her conduct in the New Haven, Connecticut, firefighter case that is at present on appeal at the Supreme Court. The name of the case is Ricci vs. DeStefano, and in this case Sonia Sotomayor sided with the City of New Haven that was alleged to have used racially discriminatory practices to deny promotion to firefighters. She sided with them.

"Sotomayor joined a per curiam opinion that went so far as to bury the white firefighters' crucial claims of unfair treatment. Judge Jose Cabranes, a Clinton appointee, chastised her in writing for apparently missing the entire host of Constitutional issues that were before the court. According to Judge Cabranes, Sotomayor’s opinion 'contains no reference whatsoever to the constitutional claims at the core of this case' and its 'perfunctory disposition rests uneasily with the weighty issues presented by this appeal.' To judge just how bad the Ricci opinion is, even liberal Washington Post columnist Richard Cohen, wrote of his dissatisfaction 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.' Ironically, Sotomayor's dreadful decision in Ricci is under review at this time by the Supreme Court with an opinion expected by the end of June when David Souter, the justice Sotomayor is nominated to replace, has announced his retirement."

So it will be fascinating to see what the Supreme Court does in this case where a liberal Democrat judge appointed by Clinton chastised her in writing. "In another example of her radical judicial philosophy, 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.'" Yet Obama is up there talking about how she's superb at interpreting the law. She's just said -- and she said it numerous times -- she is not about interpreting the law; she's about making policy from an extreme radical left-wing position. Obama talks about we need people with empathy. It's not even about empathy, folks, that's just cover. He just wants one of his own on the court to do his dirty work from the highest court in the land, and she fits the bill.

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.' She restated her commitment to that unlawful judicial philosophy at a speech she gave in 2005 at Duke," where you just heard the audio sound bite, the Court of Appeals is where policy is made. So here you have a racist. You might want to soften that and you might want to say a reverse racist. And the libs of course say that minorities cannot be racists because they don't have the power to implement their racism. Well, those days are gone because reverse racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse racist, and now he's appointed one -- you getting this, AP? -- Sonia Sotomayor to the US Supreme Court. A guy named Jeffrey Rosen, who is the legal affairs editor at the New Republic, a liberal journal of opinion, let me read what he writes about her.

"Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues." So she's not the brain that they're portraying her to be. She's not a constitutional jurist. She is an affirmative action case extraordinaire, and she has put down white men in favor of Latina women. She has claimed that the court is all about making policy. So, yes, there's a golden opportunity. Take this to the mat. Take it to the wall. The people need to know what Obama really believes in, and this is how it can happen. Now, will the Republicans do it? That's another question.

BREAK TRANSCRIPT

RUSH: Have you seen, and do you remember if you have seen it a picture of the lady holding the scales of justice? Do you know what's remarkable about the lady in that rendering? She's blindfolded. She doesn't know whether the people before her... Justice does not know whether the people before it are black, white, Hispanic, male, female, rich, poor, Martian, or whatever. There is nothing about Sonia Sotomayor that is blindfolded where justice is concerned. This is a huge concern. Now, what are the Republicans going to do? I happen to think that this appointment by President Obama is more about Democrat Party politics than it is about the US Supreme Court. It's a close second because he does have an anti-constitutional view.

If he gets her concerned he will have an anti-constitutionalist on the court. That's what he wants. Forget this empathy stuff. That's to get the squishies among us to think it's okay. He wants an anti-constitutionalist out there. But this is also a huge wedge issue for Obama. This is a two-run homer. You might even call it a grand slam. She's a what? A, a woman. B, what? A Hispanic. Boy. She's a two prong minority. I guarantee you that a majority of Republicans are going to be scared to death to oppose her or even say anything about her because the Dems are going to use race left and right. They use race nominating her. They use race and minority status nominating her (identity politics) and then they are going to use race, identity politics, minority status, feminism, to criticize me and any other Republican that dares oppose her.

So you've got a great wedge issue here for Obama in the nomination of Judge Sonia Sotomayor. The Republicans, particularly in the Senate now, are going to be in a huge box, a huge political box -- and don't forget, the Republicans are under the illusion that how they treat and react to Sotomayor will affect how they are able to get the Hispanic vote. Now, this is where the Republicans are really, really missing the boat. We tried this. Who did...? Every Bush Hispanic nominee who was male they set out to destroy. Miguel Estrada, Alberto Gonzales, the Democrats set out to destroy them. The Hispanic aspect is irrelevant except when they nominate one, particularly now a woman. So the Republicans are going to have to forget about this.

They have got a choice here, the purpose of which is to get an anti-constitutionalist on the court, and the second aspect of the choice is to shut them up, to cower them, to get them cowering in fear in the corners of the committee hearing room and saying nothing. Because Obama knows that the moderate Republicans who run the Republican Party, led by General Powell, are obsessed with not causing any waves, not making any waves. And they're obsessed with this big tent, and they're obsessed with inclusiveness (whatever the hell that means) and they're obsessed with the Hispanic vote. So whether Rahm Emanuel picked it or whether one of the Clinton people nominated her is irrelevant. Obama's got a twofer here.

And, look, as I say, the odds that she could be stopped are long. Perhaps the biggest pitfall she faces is her own confirmation hearings. She might slip up there and might say something that would give the opposition a home run. But even then they're going to have to be willing to take advantage of it. By the way, do you know that Obama opposed both Roberts and Alito? Barack Obama opposed them both, and in both cases -- of John Roberts, the current chief justice, and Samuel Alito -- he said, "Oh, they're perfectly qualified and they've both got perfect judicial temperament. But I'm going to vote against them," because to him it's about ideology. It's about liberalism. He thought these two guys were conservatives, and it didn't matter to him what their judicial temperament or qualifications were. He voted against both of those.

So now he's got a hack. He got a party hack that he's put on the court that's likely to be confirmed. This is where the so-called moderate Republicans are completely useless if you ask me. When the rubber hits the road, such as in this nomination, where are these moderate Republican groups on the nomination? Where are the moderate Senators? Where is Colin Powell? Where is Tom Ridge? You see, folks, we are confronting a radical assault on this nation, a radical assault today on the US Supreme Court, and moderates in the Republican Party are distracting our ability to organize the opposition. You know why the Democrats don't like me? You know why the Democrats don't like me and the media doesn't like me?

It's precisely because I'm the one doing the heavy lifting against them. Me and my buddies on talk radio and their leaders. I'm the one doing the heavy lifting. Colin Powell panders to moderate Republicans. The truth be told... Do you know where Colin Powell stands on a single issue? Do you know where Tom Ridge stands on a single issue? Neither one of those guys was asked where they stand on a single issue in their Sunday show interviews. So what we're trying to do here is save the country, save our country from a party and an ideology that is systematically remaking it: the Democrat Party and liberalism. And if the moderates in the Republican Party offer no way to address this danger, then they are useless. So this is where we are, and that's what I had to say about Judge Sonia Sotomayor.

BREAK TRANSCRIPT

RUSH: One more little bit of information here about Appellate Court Judge Sonia Sotomayor: "The Supreme Court has reversed Judge Sotomayor in four instances where it granted certiorari to review an opinion she authored." Now, I say this again: "The Supreme Court has reversed Judge Sotomayor in four instances where it granted certiorari to review an opinion she authored. "In three of these reversals, the Court held that Judge Sotomayor erred in her statutory interpretation," meaning she goofed up on the law. She was overturned four times when she wrote the opinion, the lead opinion, and in three of the four cases the Supreme Court held that she erred in her statutory interpretation. The cases are Knight v. C.I.R., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, New York Times, Inc. v. Tasini, and Correctional Servs. Corp. v. Malesko. The cases are 2008, 2006, 2001, and 2001. So there you have it.

END TRANSCRIPT

She's no more liberal than Souter and won't change any cases.

The good news is she's 55 and has health issues. He could have selected someone much younger and in good health who would serve much longer.

Her comments on video won't help her.

Also, by the time the hearings start, we should have the decision where the Court reverses her on the Aff Action case, which should be a pretty big embarassment.

Apparently she's had 7 cases reviewed by the SC and 6 have been reversed with the 7th upheld but for totally different reasoning, the court writing that her opinion "flies in the face of the statutory language".

Based on that and the Jeff Rosen TNR article and others I've read, she's clearly no intellectualy heavyweight. She's not going to lead some ilberal renaissance or change the Court in any significant way. She's not going to be someone who pulls Kennedy away from the conservatives; she may actually push him closer for all we know.

In short, she'll be another Souter or Ginsburg. A reliable liberal vote but not someone who will be a leader or shape the Court like Brennan or Douglas. Basically, a liberal version of Alito.

But, there's 60 dems and she'll be confirmed.

the best thing to do is point out all her flaws, unite as a party and have at least 35 no votes, and keep praying that Scalia and Kennedy can hang on.

I thought today on FNC they said 6 reviewed with 3 reversed and the CT firefighter's case pending.

Interesting how much things have changed the past few years.

o ABA ratings will be the gold standard again (unless oa negative one comes back); even a unanimous WQ was meaningless before.

o A couple of reversals were disqualifying, but now they won't matter.

o A great life story didn't matter for JRB but it's all the rage now.

o Being Hispanic was a negative before; now it's worthy of a rubber stamp.

o Being a woman now is critical; before it didn't matter or worked against you.

o Having a long and distinguished career meant nothing; now it's the #1 qualifier.

o Having a fellow judge who usually voted similarly blast one of your opinions was reason enough to disqualify before; now it won't matter.

And so on. Anyone here could add more to the list.

That said, there's no reason she should get more than 4-5 Republican votes...the same that Alito got.

She deserves a grilling, though. If the Dems can do that to Clarence Thomas and Miguel Estrada, we can do the same. If Obama can vote against John Roberts, and become President 3 years later, there is no reason to fear this so called racial retribution.

If Souter votes to overrule her on the firefighter case....well, that should be interesting.

On the plus side, this probably knocks out Diane Wood, and any of the other high 50s candidates. I doubt they'll be considered as they approach 60.

Sotomayor now allows Obama to pick Sunstein next time. It placates the political side so that he can satisfy the legal side next time.

Sunstein....

reverses on the firefighter case, I'll donate $100 to the DNC.

He's never met an aff action case he doesn't like.

I don't know about Wood or any others. Jan Greenburg indicated that another retirement could be soon in the offing. I predict Ginsburg. Stevens will hang on until at least 2011 to break Douglas' and Holmes' longevity and age records. Breyer likes the court too much to retire. If Kennedy or Scalia goes, we're effed beyond belief.

Of course, on the flip side, Sotomayor is Catholic and has no prominent abortion rulings.

I would really, really laugh if she became the 5th vote to overturn Roe..

Oddly, I reached a similar conclusion to Rush's: that Obama, not Sotomayor is the center of this debacle. Returning to constitutional values is apparently only a priority in overturning Bush policies, not in implementing liberal ones. My full take is here: http://allshepherds.blogspot.com/2009/05/sotomayor.html