Thursday, May 28, 2009

Reason #3 Sonia Sotomayor Should NOT Be Confirmed to Supreme Court

Reason #1- Sotomayor's racist/sexist remarks that sex and skin color determines ones ability to come to "better conclusions".

Reason #2- Sotomayor's remarks on camera that the circuit court should "make policy".

Reason #3- Sotomayor's opinion that "the right to possess a gun is clearly not a fundamental right".

Fox News- Judge Sonia Sotomayor could walk into a firestorm on Capitol Hill over her stance on gun rights, with conservatives beginning to question some controversial positions she's taken over the past several years on the Second Amendment.

Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states.

A 2004 opinion she joined also cited as precedent that "the right to possess a gun is clearly not a fundamental right."

Ken Blackwell, a senior fellow with the Family Research Council, called Obama's nomination a "declaration of war against America's gun owners."


Anonymous L. James Wood - St. Mary's Law School said...

#1 - Sotomayor did not remark that sex and/or skin color directly yielded better conclusions. What can be reasonably inferred from her now famous "wise Latina" comments is that a person's character and wisdom is strengthened by learning to overcome the adversity of being a woman or a minority in this society. This follows the timeless mantra of "that which does not kill us makes us stronger."

#2 - Like it or not, the appellate courts DO make policy. Although the appellate judges might not make policy in the sense of initiating ideas and bills that eventually become law, they issue judgments on debated topics that become law. Plain as day, if an appellate court hands down a judgment that modifies, vacates, or creates a new legal caveat to policy--a new policy has been "made." This is especially true given the fact that the appellate circuits are the courts of last resort for most cases (because the Supreme Court only hears a very small number of the cases presented to it). So, in issuing decisions that create new policies (which is the appropriate function of judicial review and the judicial system all together), appellate judges "make" policies that can apply to huge amounts of people.

#3 - Gun ownership is not a FUNDAMENTAL right. The qualifier of "fundamental" implicates more than what it might seem. Calling something a "fundamental" right (in legal language) means that it is a right expressly guaranteed by the Constitution. Yes, the 2nd Amendment guarantees the "right to bear arms." But we have not interpreted that to mean that EVERYONE is entitled to bear ANY arms. Instead, we have denied that right to convicted felons and people under certain ages. For instance, a mentally insane ex-con who previously murdered 35 people should not be able to own a gun just because the 2nd Amendment says there is a "right to bear arms." Further, as in the Supreme Court's holding in Heller, there is evidence that the framers did not intend the word "arms" to include all firearms. In that regard, we are also not allowed the right to own fully automatic weapons nor weapons bought in the black market. So, even though the 2nd Amendment obviously established certain rights to gun ownership, nobody would call gun ownership a FUNDAMENTAL right. (And who would want to live in a society where gun ownership were indeed a fundamental right--do you want the Charles Manson next door or your 3-year-old owning a 12-guage?

1:29 AM  
Blogger Red S Tater said...

1- Wrong, nice try... but her words are clear and her intent cannot be redirected as much as you all try.

2- Wrong... Judges should NOT legislate from the bench NOR make policy. You have just given the best reason for NOT confirming her.

3-Wrong... the second amendment provides us the guaranteed right to own and use guns, especially in the case of a run-way, socialist takeover in our government as we have today. This was the primary reason for the second amendment for the citizens to be able to strike down an oppressive government like Obama's.

Arm up America, get your 3 year olds a shotgun while you still can and remember aim before shooting... it's the safe thing to do.

8:40 AM  
Anonymous L. James Wood said...

#1 - Let's look at her words in that speech. They read,

"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.”

It is an implausable argument to say that these clear words implied that Sotomayor thinks skin color or sex alone can produce better judgment. The comment does not propose a distinction of wisdom between Latina women and white men based solely on their skin colors or sex, but instead makes very clear that it is the richness of the experience of living as both a minority and a female that have boosted her wisdom and judgment. Further, it cannot be assumed that she implied anything about race alone, because she qualifies the comparison against white men only to white men "who [haven't] lived that life."

#2 - The primary function of the judicial branch is to issue rulings. Judicial review is the power of the judiciary to overturn the acts of Congress when they are unconstitutional. For example, if Obama or Congress were to [theoretically] completely outlaw all possession of any firearms, the judiciary would overturn that law and effectively "make" new policy. Judges are appointed (in the federal system) with the purpose of adminstering justice by issuing rulings. If you disagree with that system, the proper place to object is with Article III of the Constitution, in which the judiciary and it's functions are established.

Perhaps if our country did not follow 'case law' you could aruge that judges should have no role in policy making, but because this country (modeled after the English system) has always followed the legal doctrine of stare decisis, there really isn't a way around the judicial policy making issue. Also, that system of applying judge's rulings to other cases (case law/stare decisis/"making policy"), enables the country to better afford equal justice to everyone before the courts. The US has always held firm to the belief that everyone is entitled to equal or blind justice, and a system that ignored judicial rulings (policies made) would not be able to ensure equal results or consistency in law. I disagree with your use of the term "legislate from the bench" in this context, becuase making policy is not really synonymous with legislating. Also, federal judges are aware of the problem that their review creates--that is, appointed judges issuing judgments means that the people aren't getting a say in policy. It's called the "countermajoritarian difficulty," and they remedy that in some cases by not ruling in a case when the it might contain a question better suited for Congress. But the problem is not the judges - the problem is judicial review. If your stance is that Congress should have all say in legislating without a "check" to limit their power, you should be advocating the overturn of Marbury v. Madison. It's the rules, not the players here.

#3 - I agree, the 2nd Amendment does indeed guarantee a right to bear arms. (What defines arms, though? See Heller.) What I disagree with is the qualification of that right being a fundamental right. Like I said, that word 'fundamental' is a legal term that imples more than just a solidified right. As previously mentioned, if it were really a "fundamental" right, there would not be restrictions on the kind arms or the kind of people allowed to own them. Sure--it's a right, I agree. But just like we would ideally use the limitations of that right to restrict terrorists from owning weapons in this country, we impose limitations on the 2nd Amendment and thereby break it's ability to be a fundamental right.

10:23 AM  

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