The Unpredictable, Undependable Sotomayor

Tim Phillips and Phil Kerpen of the Americans for Prosperity Foundation have written a great review of Sonia Sotomayer's judicial record with respect to decisions affecting businesses and property rights. They called it Sotomayor's unpredictability is bad news for struggling economy. Sotomayor has embraced unpredictability in the law in theory. Phillips and Kerpen say:

The most disturbing statement of Sotomayor's judicial philosophy comes from her 1996 article in the Suffolk University Law Review. In it she defended this statement from legal theorist Jerome Frank: "Law must be more or less impermanent, experimental, and not nicely calculable."

Any businessman will tell you that there is more than enough unpredictability to deal with in the economy without having an overlay of legal uncertainty. Our free-market system depends, in fact, on the stability and calculability of the rule of law.

The basic rules of the road should be as stable and predictable as possible. And during a time of wildly unpredictable swings in economic policy from Congress and the administration, the last thing we need is an experimentally-inclined judiciary.

The need for predictability and to calculate risks and benefits into the future are critical for all aspects of managing one's life. There is no exception to this in business or in investing. I have made this point many times. Phillips and Kerpen then go on and provide a discussion of a number of her specific decisions, which is very enlightening. It is clear that Sonia Sotomayor is a very inappropriate pick for the Supreme Court. But, there is a reason for her being picked, aside from trying to win the Hispanic vote. She will do great damage to hardworking and achievement oriented Americans. Obama and crew truly hate such people.

Sotomayer the Unjust, the Oppressor

I have earlier noted that Judge Sonia Sotomayor has severe shortcomings as a federal judge and would be unsuitable as a Justice of the Supreme Court. I discussed her faults with respect to group identity biases and with respect to her lack of respect for private property rights in posts on 27 May and 3 June of 2009. Today I will discuss another huge problem affecting our individual rights.

This problem is revealed by her decision in the case of Maloney v. Cuomo, which considered whether the recent Supreme Court decision that the people of the District of Columbia have a right to own and bear arms applies to citizens who live in states. Remarkably, Judge Sotomayor found that states have the power to deny their citizens the right to own and bear arms even if they are law-abiding citizens. She held that the Second Amendment does not recognize an individual right which no government in the United States of America was empowered to violate.

It is very clear that the Framer's of the Constitution and the Bill of Rights intended to protect just such an individual right from all levels of government with the Second Amendment, just as they were doing the same to protect individual rights to freedom of speech and a free press in the First Amendment. Indeed, it has been well-established law that the protections of the First Amendment do apply to all Americans, just as freedom from illegal search and seizure guaranteed by the Fourth Amendment does. Sonia Sotomayor thinks otherwise with respect to the Second Amendment.

Given this viewpoint that the amendments to the Constitution may or may not, upon her whim, actually serve as protections of the individual and his sovereign rights from the worst predators extant, namely our governments, it is clear that Sotomayor is even more ready than most progressives to eviscerate the Constitution. She is determined that it will not stand in her way when she personally decides that she likes something or she does not. She has already made it clear that it will not stand in her way when it comes to the law being blind with respect to a person's race or ethnic background. She has made it clear that she recognizes little to no personal property rights, if a government body lusts after an individual's property. She has also made it clear that even a right to which an entire original amendment in the Bill of Rights was devoted, earns no respect from her.

We must rationally conclude that not a single right guaranteed to Americans in the Constitution is safe from her predations. She is clearly such a believer in all-powerful governments that no individual right has any real standing with her. If a government wants it, that government gets it. We, as individuals, have no protection from governments based upon our rights, whether to be judged only on the basis of our character, to own property, or to own and bear arms today; but tomorrow we may just as well have no freedom of speech, no freedom to assemble, to freedom to petition government, no freedom of the press or Internet, and no freedom from unreasonable search and seizure. It seems clear that she, as with Joe Biden, believes that individuals only have those "rights" which government chooses to give them. What government gives at one time, it can take away at another and Sotomayor is prepared to help with the taking.

On Some Criticisms of Sonia Sotomayor

There are two statements made by Supreme Court nominee Sonia Sotomayer which have come under a great deal of criticism in conservative circles. These are:

"Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases....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."

"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, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating."

As I mentioned in my previous post, I believe Judge Sotomayer is a badly flawed judge, but we should make her evaluation on a rational basis and these quotes as given above are not a sound basis for such an evaluation.

In the first quote, she is said by many conservatives to have taken a racist stance. Well, no, this is not the case. I think some of her case judgments and other statements reveal her as racist, but this statement does not. The reason is that anyone of any race who is wise is, of course, going to make better judgments and decisions than the average person of any race. Wise people are not all that common and many people of any race in positions of authority are not wise. So, a wise Latina woman is going to make better decisions more often than not than a white male. Similarly, a wise white male is going to make better judgments and decisions more often than not than a Latina woman. These statements will both be true provided that the person not specified as wise is not one of the few wise members of the given race. There are specifically very wise judges who are white males (Judge Andrew Napolitano), white females, black males (Justice Clarence Thomas), black females, Latin males, and Latina women, Asian males, Asian females, Native American males and females. Whoever is chosen for the Supreme Court position ought to be one of those few judges who is wise. I do not care what race or nationality they are, only that they are wise.

Now, a wise judge would have a very good understanding that all laws should be consistent with our Constitution and that the purpose of the Constitution is to protect, preserve, and defend the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness. In addition, a wise judge would know that the rule of law and the impartiality of law with respect to wealth, race, religion, and national origin is very important. The wise judge would understand that the law must be consistent and intelligible and that it must be as simple as it is reasonably possible to make it. Overly complex laws are effectively unknowable and are therefore an abomination. For instance, any law that Congress cannot even interpret is clearly not a law at all and should be thrown back in their faces as a disgrace. Much of the tax code, EPA regulations, and anti-trust law all fall into the realm of unintelligible law which should be unenforceable in the courts. Judge Sotomayor is certainly not such a wise judge based upon her decision record.

Let us now examine the statement that the Court of Appeals is where policy is made. Looking at her record, there is reason to be concerned here with respect to Judge Sotomayor's understanding of the law. But, one really does have to look beyond this statement to come to that conclusion. This statement could be understood in a context that the lower courts may disagree with one another on the law and the Court of Appeals, which produces the final appeal decision on 99% of court cases, has to set the policy of what the law actually means with its decisions. This does not necessarily mean that they are making up law, as some conservatives have implied. Unfortunately, an examination of Sotomayor's actual decisions does lead one to conclude that she makes up law as it suits her, but this quoted statement does not make that clear. One has to dig deeper.

The argument against Judge Sotomayor's appointment is trivialized if we stop with these quotes and base all of our objections to her upon them. We must examine her decisions and look to other quotes for a true understanding of her philosophy of law. We will not be happy with what we find, since she has no business serving on the Appeals Court, let alone on the Supreme Court.

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.