Over Republican objections, Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) is rushing the Supreme Court nomination of Sonia Sotomayor to a July 13 hearing.
While Judiciary Committee Republicans struggle with her incomplete June 6 answers to the Senate Judiciary Committee questionnaire, they are working to review her more than 3600 district and circuit court decisions and opinions and dozens of public speeches and statements to define the questions they will pursue in the hearings. It simply cannot be done by July 13.
Many of Sotomayor’s statements are already on the record. The self-proclaimed “affirmative action baby” said, in her 2001 speech at Berkeley, that “Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
In that speech she went on to disagree with the comments of fellow Second Circuit Judge Jose Cabranes that judges must transcend their personal sympathies and prejudices saying, “…I wonder whether achieving that goal is possible in all or even most cases. And I wonder whether by ignoring our differences as women and men of color we do a disservice to both the law and society.”
The fact that a nominee to the nation’s highest court embraces her personal biases and applies them in selecting the facts on which to base decisions is sufficient reason to deny her confirmation. But in the Senate hearings she will do her best to obfuscate that practice.
Senate Republicans need to penetrate the cloud in which President Obama and Senator Leahy have enshrouded this nominee. They have to learn the questions to be asked from more than the scant analysis they will be able to make before July 13.
There is another, perhaps better way to find the right questions to ask Sotomayor. Judiciary Committee Republicans should study David Hamilton, President Obama’s highly controversial nominee to the U.S. Court of Appeals for the Seventh Circuit.
It is necessary to study Hamilton because he is a product of the same Obama nomination process, vetted and chosen by the same team that chose Sotomayor in accordance with the president’s criteria. They are like Russian “Matryushka” dolls, one nested inside the other, all within the president’s smiling visage, intended to impose “change” on our judiciary.
David Hamilton is another Obama empath. In an answer to a question by Sen. Tom Coburn (R-Okla.), Hamilton wrote, “A judge needs to empathize with all parties in the case — plaintiff and defendant, crime victim and accused defendant — so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.”
According to the Almanac of the Federal Judiciary, Hamilton is one of the most lenient judges in his district. In criminal cases, he leans toward the defense, and is — in the words of one comment in the Almanac — the “best bet” for “downward departures”, (i.e., to impose sentences less severe than called for in the Federal Sentencing Guidelines.)
As a district judge, on what basis did Sotomayor impose “downward departure” sentences and how often?
In a 2003 speech that Hamilton gave upon the dedication of the Birch Bayh United States Courthouse, he noted, “Judge S. Hugh Dillin of this court has said that part of our job here as judges is to write a series of footnotes to the Constitution. We all do that every year in cases large and small.”
In 2005, Sotomayor said that on the Court of Appeals, “…policy is made.” Hamilton’s 2003 comment illuminates Sotomayor’s “policy” statement in a way Republicans must examine.
By the time Sotomayor’s confirmation hearing is held, the Supreme Court may have reversed her most famous decision, Ricci v. DeStefano. Displaying a remarkable lack of empathy to the appellant — a white firefighter denied promotion for which he qualified despite a severe learning disability — Sotomayor upheld the city of New Haven, Connecticut’s decision to throw out the results of a promotion examination without even summarizing — far less ruling on — the constitutional issues presented for the first time in any court.
If the Supreme Court decides that case before the hearing, there will be many questions for Sotomayor. But regardless of when the decision comes down, Hamilton’s controversial decisions in that area and many more provide a road map for questioning Sotomayor.
By his decision in A Woman’s Choice v. Newman, Hamilton blocked the enforcement of Indiana’s “informed consent” abortion statute for seven years. Hamilton apparently based his decision on studies of the effect of informed consent laws in Mississippi and Utah which found those states’ laws reduced abortions by 10%. He concluded that those statistics proved the statutes comprised an undue burden on women.
Reversing Hamilton, the Seventh Circuit chastised him for preventing enforcement of a law materially identical to one held valid by the Supreme Court in the Planned Parenthood v. Casey decision: “No court anywhere in the country (other than one district judge in Indiana) has held any similar law invalid in the years since Casey…Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that law judged by its own consequences.”
In her interview with Sen. Jim DeMint (R-S.C.), Sotomayor said that she had never thought about whether an unborn child has constitutional rights. How is that possible for a judge who has been on the bench since 1992? And how can that be reconciled with the actions of the Puerto Rican Legal Defense and Education Fund, which Sotomayor served as a board member from 1980-1992?
As the Washington Times reported, PRLDEF filed many “friend of the court” briefs in abortion cases, in one writing that it “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade." Sotomayor reportedly was an activist board member, frequently meeting with the Fund’s staff to review the status of cases it was involved in.
Does Sotomayor agree with the Seventh Circuit in A Woman’s Choice and the Supreme Court in Casey, or does she remain on the side of Hamilton and PRLDEF?
Two of Hamilton’s controversial rulings on religious matters were reversed by the Seventh Circuit. In Hinrichs v. Bosma, Hamilton enjoined the Speaker of the Indiana House of Representatives from allowing Christian clergy to mention “Christ’s name or title” because it was presumptively sectarian while finding that a Muslim imam’s offering a prayer to “Allah” was not.
Does she agree with Hamilton’s decision in Grossbaum v. Indianapolis-Marion County Building Authority in which he ruled against a rabbi’s effort to have a menorah placed in a county building? (The Seventh Circuit overturned Hamilton’s decision in that case as well.)
Where does Sotomayor draw the First Amendment line?
If Pat Leahy has his way, Republicans will be left to question whether Sotomayor — in a decision she reportedly took only fifteen minutes to render — saved major league baseball by ruling against owners and ending a players’ strike. How anyone could be proclaimed the “savior of baseball” while leaving the designated hitter rule in place is a logical impossibility.
Republicans can do much better than that. Republicans should study Hamilton, and from his decisions and speeches derive much of what needs to be asked of Sotomayor.