Erasing the Remnant of Constitutional Government

Obama has chosen Judge Sonia Sotomayor as his nominee for the position opening on the Supreme Court upon Justice Souter's retirement. She has served on the U.S. Court of Appeals for the 2nd Circuit for 10 years. Justice Souter was no champion of individual rights and was notable in his defense of the City of New London in taking the land out from under Susan Kelo's home. Sonia Sotomayor looks at this point to be a still more consistent enemy of the individual and of property rights. She is, however, full of empathy for those Obama cares about, or at least likes to pose as caring about. She is also an enemy of the successful and those hard-working people who may be on their way to becoming successful.

Obama mostly has his way with the Congress. Congress is capable of making the occasional symbolic assertion of independence when Obama wants them to do something hugely unpopular with Americans, but really no more than they know he will tolerate. In any case, neither the President nor the Congress have been concerned about the Constitutionality of the laws they enact and ratify for a long while. Such little protection as Americans have comes in those rare cases when Americans overwhelmingly recognize an act of Congress as both unconstitutional and unpopular with them or it comes from the Supreme Court serving as an infrequent brake on the erosion of our liberties. Congress and the President have become consistent treats to Constitutional government, while the Supreme Court has been a very inconsistent protector of the Constitution.

Obama, as much as FDR, wants to change the Supreme Court to make its road bumps to his barreling socialist diesel truck as minuscule as possible. His favored group identity agenda, his taking control of the energy industry and all those other industries that use energy, his pending takeover of the medical insurance business, his transfer of business assets to the unions at the expense of investors and the future of the businesses so robbed, his enthusiasm for the massive transfer of wealth from the private sector to the public sector, his desire for unchecked unilateral power in the hands of the President, and his desire to encourage and require Americans to serve government in myriad unpaid or underpaid ways, all appear well-served by his appointment of Judge Sotomayor.

She has made it clear that she thinks a Latino woman makes better decisions than white men. Well, I am sure that some Latino women make better decisions than some white men. But, it is no less offensive a statement to say what she has said than it would be to say that white men make better decisions than Latino women. And frankly, the latter statement might be more defensible on average than the former, since white men may be a bit more rational on average than are Latino women. When hiring someone for a job, averages are irrelevant, however. It is the ability and the character of the individual that count. When it comes to picking judges, we should surely look very closely at the individual and pick that individual who will prove the best defender, protector, and preserver of the Constitution and of those laws which are constitutional. It may be a good thing to have a female Latino Supreme Court Justice, provided she is a true champion of the Constitution and the individual rights it was intended to protect. Of course, in the context of our times, I will be delighted with anyone of any race or gender or national background who is such a champion of the rights to the individual.

Among Judge Sotomayor's poor judgments was her unargued dismissal of the Ricci vs. DeStefano case in which the City of New Haven denied firefighters a promotion though they passed the test which was to decide on their promotion. The city simply decided that there were too few minority members who passed the test, despite its having been carefully designed to discriminate against no minority or at least those minorities approved by government currently. Sotomayor was one of three judges on the review panel and apparently had no empathy for the 20 firefighters who passed the test, including the one recognized minority member who passed it. Empathy is always selective for those of the left. It selectively ignores the capable and favors the incompetent and the unprepared. It bestows itself upon those who meet certain group identity parameters and discriminates against those who do not. It substitutes approved group identities for individual character and ability. It is as simply bad as the discrimination in favor of white males once was in the Antebellum South. The logic is slightly different, however, since the Antebellum South favored white males because they thought they had more ability and better character, while now the left favors those groups they believe have less ability and less good character and consequently can only enjoy material success with the helping hand of the politicians and the force of government.

Judge Sotomayor also was on the panel that issued the Summary Order in Didden v. Village of Port Chester. Richard Epstein, a defender of property rights, has written about this case in Forbes. Judge Sotomayor sat on the review panel that upheld the decision against Bart Didden and his partner Domenick Bologna. Richard Epstein says,

The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Apparently, property rights have no standing with Judge Sotomayer. Not only is she opposed then to those who do not meet with her approval in terms of their group identity, but she is also opposed to those who own property. This is not an example of rational empathy and it surely is not an example of the rule of law, most especially not of Constitutional law.