Here are the Blogs in the Judiciary category.
Thursday, 9 July 2009
Nomination of Sonia Sotomayor for US Supreme Court
 Senate Judiciary Committee has scheduled a hearing on The Nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States Monday, July 13, 2009 Hart Senate Office Building Room 216 10:00 a.m. There no Tennessee Senators on the Judiciary Committee.
We are asking our Tennessee Senators to oppose this nomination and support postponing the confirmation vote until after the August recess.
Go HERE to send your email.
For out-of-state subscribers, you can click HERE to see if your senator is on the committee
[Click on picture to follow the activities -- The Judicial Review.]
COMMENT: Not only do the past statements of nominee to the U.S. Supreme Court Sotomayor pose problems for those of us who actually believe in 'strict construction' and 'original intent' where the U.S. Constitution is concerned, reading the President's remarks perhaps demonstrates why she was chosen. It is NOT the job of a judge to 'stand in somebody's else's shoes'!! It is the job of the judge to look at the case in view of the constitution. Republican Leader Sen. Mitch McConnell stated: ‘As we consider her nomination to the Supreme Court, my colleagues should ask themselves this important question: is she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says’
Below these articles is a compilation of her cases.
This confirmation is being rushed through the U.S. Senate. It appears to be an effort to prevent the American people from talking to their U. S. Senators over the August recess. This is a very important decision and Sotomayor's radical record MUST be explored thoroughly prior to a confirmation vote. The Senators and the American people have the right to learn as much as they can about this woman who could be on the court for the rest of her life. The vote can wait until September.
Obama seeks to quell Sotomayor dust-up
By Globe Staff | May 30, 2009
President Obama sought yesterday to douse the political firestorm over Supreme Court nominee Sonia Sotomayor's much-dissected 2001 remark that a "wise Latina woman" could often reach "better" judgments than a white judge.
After his spokesman said that Sotomayor had acknowledged a "poor" choice of words, Obama said yesterday that Sotomayor "would have restated" her comment. "She was simply saying that her life experiences will give her information about the struggles and hardships that people are going through [and] that will make her a good judge," the president said in an interview with NBC News.
"Part of the job of a justice on the Supreme Court, or any judge, is to be able to stand in somebody else's shoes, to be able to, you know, understand the nature of the case, and how it has an impact on people's ordinary day-to-day lives," he added.
The remark at issue was made during a speech at the University of California at Berkeley in which Sotomayor said "our gender and national origins may and will make a difference in our judging." "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," she said. Read more here
Court reverses Sotomayor decision on firefighters
The Supreme Court on Monday narrowly reversed a controversial decision written by President Obama’s nominee to join the body, giving conservative groups a chance to take issue with Judge Sonia Sotomayor even as her confirmation looks increasingly likely.
Justices reversed the Second Circuit Court of Appeals decision in Ricci v. DeStefano, a case that has been at the heart of conservative opposition to Sotomayor’s nomination. Read more here
NRA Taking Aim in Supreme Court Battle
Two pieces of bad news for supporters of Sonia Sotomayor to the U.S. Supreme Court. First former National Rifle Association (NRA) president, Sandy Froman (who apparently is no relation to the sausage king of Chicago), has a good piece out stating “Gun owners, and especially the members of the National Rifle Association, must aggressively oppose Judge Sotomayor’s confirmation to the Supreme Court.”
This was followed by current NRA Executive Director Chris Cox stating the organization has serious concerns over Ms. Sotomayor’s record on the 2nd Amendment. If the NRA opposes the Sotomayor nomination that would be the first serious dent in her nomination that we have seen – an NRA endorsement or non-endorsement carries a lot of weight with Democrats in rural and conservative areas. Read more here
Sotomayor Failed to Disclose to Senate Memo in Which She Argued Death Penalty is 'Racist'
The Judicial Confirmation Network (JCN) says Judge Sonia Sotomayor failed to disclose to the Senate Judiciary Committee a controversial document arguing that the death penalty is “racist” and a violation of the present “humanist” thinking of society.
The 1981 memo, they say, should have been disclosed as required under Question 12 (b) of the questionnaire that the Supreme Court nominee turned in Thursday. Read more here
REACHING ON RICCI
The United States Supreme Court Has Overturned Sotomayor Once Again In Ricci V. Destefano
SOTOMAYOR HAS NOW HAD SEVEN OF HER DECISIONS GO BEFORE THE HIGH COURT, AND THE COURT AGREED WITH HER REASONING ONLY ONCE
- Ricci v. Destefano 530 F.3d 87 (2008) - Reversed 5-4
- Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2007) -- Reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)
- Knight v. Commissioner, 467 F.3d 149 (2006) -- Upheld, But Reasoning Was Unanimously Faulted
- Dabit v. Merrill Lynch, 395 F.3d 25 (2005) -- Reversed 8-0
- Empire Healthchoice Assurance, Inc. v. Mcveigh, 396 F.3d 136 (2005) - Upheld 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)
- Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- Reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)
- Tasini Vs. New York Times, et al., 972 F. Supp. 804 (1997) -- Reversed 7-2 (Dissenting: Stevens, Breyer) ("Sotomayor's Resume, Record On Notable Cases," www.cnn.com, 5/26/09)
SOTOMAYOR'S MENTOR ON COURT DISAGREED WITH RICCI RULING
Even Sotomayor's "Mentor" On 2nd Circuit Court Issued "Blistering Dissent" Of Ricci Ruling. "Now, those differences with her mentor are at the center of the debate over her confirmation because of Judge [Jose] Cabranes's blistering dissent from a ruling by Judge Sotomayor and two others." (David D. Kirkpatrick, "Judge's Mentor: Part Guide, Part Foil," The New York Times, 6/29/09)
- Judge Jose Cabranes Said That The Majority "Failed To Grapple With The Questions Of Exceptional Importance Raised In This Appeal." "Writing for the six dissenters, Cabranes said that the majority 'failed to grapple with the questions of exceptional importance raised in this appeal,' and he urged the Supreme Court to do so. He also raised the question of whether the case involved 'an unconstitutional racial quota or set-aside.'" (Stuart Taylor, "New Haven's Injustice Shouldn't Disappear," The National Journal, 12/13/08)
- "Cabranes Stressed That Despite The Importance Of The Issues And The Unusually Long And Detailed Briefs, Arguments, And Factual Record, The Three-Judge Panel's 'Perfunctory Disposition' Oddly Contained 'No Reference Whatsoever To The Constitutional Claims At The Core Of This Case.'" (Stuart Taylor, "New Haven's Injustice Shouldn't Disappear," The National Journal, 12/13/08)
THE SUPREME COURT HAS CONTINUOUSLY QUESTIONED SOTOMAYOR'S LEGAL INTERPRETATIONS
In 2007, The Supreme Court Reversed Sotomayor's Opinion In Riverkeeper, Inc. v. EPA 6-3, Saying That Sotomayor's Interpretation Of An EPA Rule Was Too Narrow. "Environment (Protection of fish at power plants): Sotomayor, writing for a three-judge panel, ruled that the Environmental Protection Agency may not engage in a cost-benefit analysis in implementing a rule that the 'best technology available' must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the 'best technology' regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the 'best technology' rule was too narrow. Justices Stevens, Souter, and Ginsburg dissented, siding with Sotomayor's position. Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007)" ("Sotomayor's Resume, Record On Notable Cases," www.cnn.com, 5/26/09)
In 2006, The Supreme Court Upheld Sotomayor's Ruling In Knight v. Commissioner, But "Unanimously Rejected The Reasoning She Adopted, Saying That Her Approach 'Flies In The Face Of The Statutory Language.'" "Taxes (Deductability of trust fees): In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductable. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach 'flies in the face of the statutory language.' Knight vs. Commissioner, 467 F.3d 149 (2006)" ("Sotomayor's Resume, Record On Notable Cases," www.cnn.com, 5/26/09)
In 2005, The Supreme Court Unanimously Overturned Sotomayor's Ruling In Dabit v. Merrill Lynch, Saying That Sotomayor's Position "Could Give Rise To 'Wasteful, Duplicative Litigation.'" "Finance (Rights of investors to sue firms in state court): In a 2005 ruling, Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling in an 8-0 decision, saying that the federal interest in overseeing securities market cases prevails, and that doing otherwise could give rise to 'wasteful, duplicative litigation.' Dabit vs. Merrill Lynch, 395 F.3d 25 (2005)" ("Sotomayor's Resume, Record On Notable Cases," www.cnn.com, 5/26/09)
In 2000, The Supreme Court Overturned Sotomayor's Ruling In Malesko v. Correctional Services Corp., Saying That Sotomayor Has Inappropriately Expanded A Previous Decision To Cover The Current Case. "Civil Rights (Right to sue federal government and its agents): Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as 'Bivens,' which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5-4 decision, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling. Malesko v. Correctional Services Corp., 299 F.3d 374 (2000)" ("Sotomayor's Resume, Record On Notable Cases," www.cnn.com, 5/26/09)
In 1997, Sotomayor's Ruling As A District Court Judge In Tasini v. New York Times Was Overturned By The Appellate Court; The Supreme Court Upheld The Appellate Court's Reversal Of Sotomayor."Intellectual Property (Distribution of freelance material): As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databa ses and archives such as 'Lexis/Nexis' without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling). Justices Stevens and Breyer dissented, taking Sotomayor's position. Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997)"
Posted on 07/09/2009 9:20 AM by Bobbie Patray
Monday, 1 June 2009
Sotomayor: "The court of appeals is where policy is made"
COMMENT: "Activist Judge" -- it would appear that the definition of that term is Sonia Sotomayer. The President stated that "empathy" was the quality that he was looking for -- it certainly appears that he found just that. “The court of appeals is where policy is made" and the quote in red below are just a few of the 'clues' about the kind of Justice Sotomayer will be, should she be confirmed.
Some Key Questions for Sonia Sotomayor
by Robert Knight
When Senators get a chance to vet Supreme Court nominee Sonia Sotomayor, there are some important questions that they may want to get to the bottom of.
“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.”
You also said “our gender and national origins may and will make a difference in our judging.”
Finally, you urged some advocacy groups “to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.”
Impartial justice is the expected standard in America’s courts. Judges are to apply the law, not make decisions based on the group identity of the parties involved. Otherwise, justice would not be blind and the scales could be tipped toward favoritism.
Question: Will you judge according to the rule of law or according to your “empathy” for particular parties in a case? Do you believe that government and corporate policies should openly discriminate against white males by employing affirmative action?
National sovereignty – In The International Judge, a book for which you wrote a foreword, there is this observation on p. 228:
Read More here
Sotomayer Ruled Fish Must Be Protected from Power Plants Regardless of Cost-Benefit Analysis
(CNSNews.com) - Judge Sonia Sotomayor, President Obama's nominee to replace Supreme Court Justice David Souter, ruled in a 2007 case that power companies must protect “fish and other aquatic organisms” from being sucked into cooling vents regardless of the costs, saying the Environmental Protection Agency (EPA) was not allowed to use a cost-benefit analysis in measuring power companies’ compliance with the federal Clean Water Act.
Read more here
Sotomayor Ruled That States Do Not Have to Obey Second Amendment
Thursday, May 28, 2009
By Matt Cover
(CNSNews.com) – Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.
In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.
Read more here
Obama Makes His First U.S. Supreme Court Pick: From Souter to Sotomayor
Barack Obama has ended the well publicized speculation concerning the identity of his first Supreme Court nominee by naming to the critical High Court seat a well publicized contender — Sonia Sotomayor. Sotomayor has been tapped to take the seat of retiring Justice David Souter. Souter, a Reagan appointment, turned sour on the Court and has been a staunch Reconstructionist — an opponent of the Constitutionalist theory necessary if our Constitution and culture are to survive and thrive. What can we expect of Sotomayor? We offer a preliminary view below. For several years, Court Watch has identified and articulated the essential characteristics of a Constitutionalist judge. This description is presented below in "A Portrait of a Constitutionalist Judge." We follow this "yardstick" with "A Portrait of Judge Sotomayor."
A Portrait of a Constitutionalist Judge
- The Constitution is, and must be, by definition, the "supreme, fundamental, paramount, permanent" law of the land. No court decision, statutory law, or other form of "law" is either equal to, or superior to, the Constitution.
- The basic purpose of our Constitution, as of all constitutions, is to provide the stability necessary for our legal system to survive and thrive. Additionally, the Preamble lists six specific constitutional purposes, which balance individual liberty with the common good.
- The provisions of our Constitution have fixed meanings. These meanings can, and must, be determined by careful objective study of such factors as the express language of the text (understood in its original meaning), the context of the provision being interpreted and of the entire document, the intent of the Framers, and the worldview in which the Constitution was embedded by its Framers.
- The Constitution, properly interpreted, can express the values of only one worldview. It cannot reflect a "pluralism" or "diversity" of worldviews.
- The worldview in which the Constitution is embedded is the Judeo-Christian worldview. The Constitution's principles and purposes are defined and prioritized by the Judeo-Christian value system. The Constitution cannot survive if it is ripped from its Judeo-Christian moorings.
- The Constitution embodies a multiplicity of distinct principles to guide our legal system and our culture. These principles include popular sovereignty with representative government, life, liberty, the rule of law, due process of law, equal protection of the laws, and private property/free enterprise. These principles are to be secured by structural principles including federalism and separation of powers.
- Judges have neither the authority nor the competence to rewrite the Constitution by altering its basic meaning. Judges are governed by the Constitution. They are required to respect their boundaries and give full respect to the constitution document, the consent of the governed, the other branches of the national government, the state governments, and other societal institutions.
A Portrait of Judge Sonia Sotomayor
Educational and Professional Background
Judge Sonia Sotomayor graduated from Princeton University summa cum laude in 1976 and attended Yale Law School. At Yale, she served as an editor of the Yale Law Journal and managing editor of the Yale Studies in World Public Order. She began her legal career in 1979 as an Assistant District Attorney in New York County. Since October 7th, 1998, Sonia Sotomayor has been a judge of the United States Court of Appeals for the Second Circuit. Despite the fact that President George H.W. Bush nominated Sotomayor for the district court judgeship, there is more to the story. "When President Bush nominated Sotomayor in 1991, the New York senators Moynihan and D'Amato, had forced on the White House a deal that enabled a senator not of the President's party to name one of every four District Court nominees in New York. Sotomayor was Moynihan's pick." According to Ed Whelan, it is likely that Bush only nominated her to move along the other nominees that Moynihan was holding up.
Judicial Activism
Judge Sotomayor appears willing to expand constitutional rights beyond the text of the Constitution. The most direct example of this is found in her decision in Malesko v. Correctional Services Corp., 229 F. 3d 374 (2d Cir 2000), rev'd 534 U.S. 61 (2001). In that case, Judge Sotomayor attempted to expand the liability of individual federal agents who violate constitutional rights to include corporations. In a 5-4 decision, the U.S. Supreme Court reversed the Second Circuit's decision. Chief Justice Rehnquist noted that the plaintiff was "seek[ing] a marked extension of Bivens, to a context that would not advance Bivens' core purpose of deterring individual officers from engaging in unconstitutional wrongdoing." Correctional Services Corp v. Malesko, 534 U.S. 61 (2001).
Sovereignty
Judge Sotomayor has written a foreword to a book called The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, which suggests that she believes foreign case law and statutes have a role in the adjudication of U.S. cases.
Track Record
In an October 3, 2008 commentary on National Review Online, Ed Whelan pointed out that "[o]n those occasions on which the Supreme Court has reviewed Sotomayor's rulings, she hasn't fared well, drawing some pointed criticism and garnering at most 11 out of 44 possible votes for her reasoning across five cases.
No one expects that Barack Obama will select federal judges who are faithful to the Constitution, and many Americans (especially we Constitutionalists) have expressed a sense of alienation and futility in opposing Obama nominees. The truth is, however, that now is the time to mount the most vigorous campaign possible on behalf of Constitutionalist principles. James Madison said it well, "Knowledge will forever govern ignorance: and a people who mean to be their own Governors, must arm themselves with the power that knowledge gives."
Now is the perfect time to arm ourselves with knowledge — to become knowledge-empowered! You can begin this process by visiting our Eagle Forum web site www.eagleforum.org and clicking on "Blackstone Blitz" — a short but power-packed study designed for just such a time as this. Continue to arm yourself with additional knowledge from reputable sources as the Sotomayor nomination battle heats to a white-hot intensity, climaxing in the confirmation vote in the U. S. Senate. Share that knowledge, and let your leaders know the truth about Constitutionalist judging!
How close is the "portrait of Sotomayor" to the "portrait of a Constitutionalist judge"? Judge for yourself!!!Posted on 06/01/2009 7:14 AM by Bobbie Patray
Thursday, 5 June 2008
Judicial Selection Reform Long Overdue
COMMENT: In answer to an article that was just factually wrong, Lt. Gov. Ron Ramsey (R-Blountville) has written an excellent op-ed that gives a lot of very important background to this issue which is sure to be addressed in January.
Judicial Selection Reform Long Overdue
Published: June 1, 2008
BY RON RAMSEY
Published: June 1, 2008
BY RON RAMSEY
In 2006, the state witnessed a nearly year-long battle between the Judicial Selection Commission and Tennessee Gov. Phil Bredesen over the process of selecting appellate judges, including state Supreme Court justices.
It culminated in a state Supreme Court ruling that the commission had failed in its duty to provide diversity in the choices it sent to the governor. The commission had twice submitted the name of a favorite son and former head of the Tennessee Democratic Party – after Bredesen made it clear he wished to have qualified minority candidates on any slate he received.
FAST FORWARD to the beginning of this year. Early in the year, I announced that one of my highest priorities for the legislative session would be reform of the judicial selection process. There are many reasons for this:
* Special interest control. Currently, special interests control the appointment process. Although I have eight appointments to the commission, six of those – by law – must come from the Tennessee Trial Lawyers Association (recently renamed the Tennessee Association for Justice) and the District Attorneys General Conference. This means that 75 percent of those who pick our judicial nominees are selected by special interests in the legal community. This must change. Tennesseans must have some form of accountability from those who choose appellate judges, including those who serve on the Supreme Court.
* Open government. The Judicial Selection Commission refuses to open its meetings and deliberations to the public. This has been Gov. Bredesen’s main disagreement with the commission, and I agree with him. The legislature now makes all floor sessions, committee and subcommittee meetings available online, in addition to posting all votes. There is no reason why the commission cannot at least meet in public.
* Diversity. Until I was elected lieutenant governor, the Judicial Selection Commission had never had a member from east of Morristown. No one from Bristol, Kingsport, Johnson City, Elizabethton, Erwin, Greeneville, Newport, Mountain City or any other place in Northeast Tennessee had ever been included. Indeed, the commission had only one member from east of Knoxville in its history. That is why I was proud to appoint the late Steve Rose of Kingsport to the commission and was equally proud to appoint Tom Davenport of Bristol.
FOR THESE REASONS, I spoke with all interested parties during the legislative session to craft a compromise reform for a process which obviously does not work. I proposed an amendment which removed special interest control of the nominations but still allowed legal groups to submit names, though neither I nor the speaker of the House would be bound by their list.
My amendment also required the commission to meet publicly and authorized the governor to do a standard Tennessee Bureau of Investigation background check on his nominee. The amendment required geographic and ethnic diversity on the commission and prohibited registered lobbyists from serving on it.
Once drafted, the amendment was shared with constituents, the press, the Tennessee Bar Association, the Tennessee Trial Lawyers Association and any other interested party who requested a copy. While I commend the Tennessee Bar Association for its willingness to discuss the details of the plan, no other legal group or legislator was remotely interested in a compromise that removed special interest control of the Judicial Selection Commission. That unwillingness to bend spelled defeat – at the hands of a bipartisan coalition – for the effort to renew the commission in both committee and floor votes.
Ironically, when the commission came into existence in 1994, it also faced bipartisan opposition. I voted against the measure, but so did many Senate Democrats, including Minority Leader Jim Kyle, Floor Leader Roy Herron and Sen. Douglas Henry. House Democratic Majority Leader Gary Odom also opposed the plan.
THE CURRENT judicial selection process is a perfect storm of special interest control, closed government and lack of accountability. I intend to continue the fight to reform the commission in 2009.
While I would prefer to improve the current system, allowing Tennesseans to have a greater voice in the judicial selection process, our constitution clearly allows the election of appellate court judges and Supreme Court justices. Given the stark choice between entrenched special interests controlling who serves on the bench and allowing voters to decide, I feel certain the General Assembly will choose the latter.
Ron Ramsey, R-Blountville, is a senator and Tennessee’s lieutenant governor
Read more.
Posted on 06/05/2008 5:23 PM by Bobbie Patray
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