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VOL. 11, NO. 4May 26, 2009
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 George H.W. Bush 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

  1. 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.
  2. 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.
  3. 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.
  4. The Constitution, properly interpreted, can express the values of only one worldview. It cannot reflect a "pluralism" or "diversity" of worldviews.
  5. 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.
  6. 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.
  7. 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).

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!!!

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